*1 of America STATES UNITED BRAWNER, Appellant.
Archie W.
No. 22714. Appeals, States Court District of Columbia Circuit.
Argued April En Banc 1972.
Decided June
Rehearing Aug. 21, Denied *4 Flynn, Washington, D.
Mr. Richard J. court), (appointed by whom with C. Washington, Clemens, Mr. Richard G. brief, appellant. C.,D. on the for Atty., Aldock, U. Mr. John D. Asst. S. Flannery, A. Messrs. Thomas whom Atty. time brief U. at the S. Silbert, Terry, filed, and Earl J. John A. Bernstein, Altshuler, Oscar Daniel J. Attys., Beatrice Asst. U. and Miss S. Justice, Rosenberg, Atty., Dept. were brief, appellee. for Dempsey, Jr., H. Wash- William Mr. ington, court), (appointed D. C. as amicus curiae. Hutt, H.
Messrs. Peter Barton James Washington, Ralph Temple, Heller and J. C., D. filed on behalf of brief Civil Liberties Fund of American Union Capital the National Area amicus as curiae. Messrs. Allan Ashman and John Shul-
lenberger filed a on brief behalf Na- Assn, Legal tional Aid as Defender amicus curiae. Joseph Harry Busch, Jr., Messrs. P.
Wood, Eugene Tavris, D. and Arnold T. Guminski, Angeles, Cal., Los filed brief on behalf of the District At- National Assn, torneys as amicus curiae. Marilyn Cohen, Washington, Miss D. C., on brief behalf filed of Public De- Georgetown fender and The Service Le- gal Project Intern as amici curiae. Magee, Washington, Mr. Warren E. D. C., filed a brief on behalf of American Assn, Psychiatric curiae. amicus Chambers, III, L. sively opinions Professor David Federal other many circuits, as amicus curiae. filed a brief the views thoughtfully pondered who have scholars Montgomery and Bruce Messrs. L. underlying includes file Our issues. Washington, C., Sohn, D. N. Michael counsel, presentations both Govern- American on behalf of the filed brief appointed to lawyers and counsel ment represent Psychological Assn., curiae. as amicus defendant, and submissions Washington, Fitzpatrick, Mr. James F. responded invita- who have those C., appearance D. also entered on a curiae amicus to comment as tion Psychological American Assn. mat- of inter-related number considerable Washington, Lenzini, A. Mr. Paul D. ters. C., Assn, filed a brief Bar behalf of the Columbia, canvas stretched our District We have point wide; land focal amicus curiae. and the scape is the formulation before us pri ON EN BANC REHEARING ALI’s Institute. The American Law mary provision in its Mod stated thus BAZELON, Judge, and Before Chief Code, 4.01(1). see Penal § el McGOWAN, TAMM, LEV- WRIGHT, Mental Disease Section Excluding Responsibility. ENTHAL, ROBINSON, MacKINNON, b.01 Defect Judges, ROBB, WILKEY, Circuit
sitting en bane. responsible person A is not *5 conduct if such criminal at the time Judge:
LEVENTHAL, Circuit as a result of mental disease or conduct capacity ei- defect lacks substantial ap- principal on this issues raised criminality appreciate to ther de- peal for second from a conviction [wrongfulness] ^of conduct or to dangerous gree carrying murder require- conform his conduct appellant’s weapon defense relate to of the ments law. argued insanity. After to the case was court, spon- adopt sua ALI rule as division of court We have decided rehearing excluding responsibility for iden- te ordered en banc. We doctrine ap- application defect, our intention to or tified reconsider disease mental prospectively insanity begun propriate de- this standard for to trials after supple- fense, authorized counsel to file date. briefs, De- invited Public justice that has called interest of fenders’ “to submit an additional Service us to this labor bids forth com- us set ap- appellant,” brief on behalf of ments which we the matters review Jr., Esq., pointed Dempsey, H. William primary concluded we were of conse- curiae, amicus as without instruction as quence though practicably re- we cannot — theory, to result or research the au- “to ground traverse all the covered in our on the issue of criminal thorities These reflection. comments also con- sponsibility,” to advise the court thereon we, tain features of the rule in which present argument. ad- and to oral We courts, like other ad- recorded our organizations vised number justments of the rule understand- action, and amicus curiae. invited briefs ings concerning application its are Subsequently we directed Clerk part adoption stated as notify questions concerned of all rule, improve its to further requested (Appendix court A). be discussed underlying objectives. highlight, its We these, as most notable of our decision course our reconsideration retain the definition or “mental illness governing insanity of the rule de- defect” we evolved in our 1962 Mc- fense, opinions of Donald1 we have studied the en banc. Others courts, particularly prompted by other not exelu- rais- submissions which U.S.App.D.C. 120, (en banc, 1962).
1. McDonald v. United
114
ed, points to the ALI e. At the time con- fairly taken duct 991 matters that we think can be ................. by clarifying comments. into account Capacity appreciate d. in- wrongfulness For assistance the reader of his con- duct 991 point ................. Table of Contents sert identifying topics discussed in this paragraph...... e. 992 Caveat opinion. presentation f. Broad
jury.................. 994 TABLE OF CONTENTS E. and Im- Inter-related Doctrines plementing 995 Instructions ...... A. The Trial Record............ 974 Suggested 1. instruction..... B. Developments Prior of the In- Burden of Proof......... sanity Defense in this Juris- “Lyles” 2. The instruction— diction ..................... effect of verdict Insanity C. Rule in Other Cir- guilty by reason of insani- cuits ....................... ty ...................... D. Concerning Comments Reason though condition, in- 3. Mental Adoption of ALI Rule exonerate, sufficient Scope Adopted Rule as specific men- be relevant This Court.................. tal element of certain crimes 1. depart Need to “pro- degrees crime....... ductivity” formulation Disposition F. of the Case.......1003 undue dominance ex- Causality Issue of Testimo- perts ......t,............ ny ......................1003 2. Retention of McDonald def- Prosecutor’s conduct......1003 inition of “mental disease 3. Remand.................1004 defect”............... *6 Interest of uniformity Supplement Clarify G. Matters judicial approach and Separate Opinion. vocab- Discussed in .1005 ulary, with room for varia- Appendix A.....................1007 adjustments tions and .... Appendix B.....................1008 rejection Consideration and suggestions...... of other A. The Trial Record Proposal a. abolish in- Passing disagree- various minor sanity defense......... among witnesses, ments the record the Proposal b. for defense if permits us reconstruct the events mental impairs disease September 8, 1967, as follows: After capacity to such an ex- morning wine-drinking, and afternoon of tent that defendant “can- appellant Brawner, Archie W. Jr. and justly be held re- Ross, party his uncle Aaron went to a sponsible.” ............ acquaintances. the home of three Dur- 5. ALI contemplated rule is ing evening, fights the several broke out. improving process the of ad- jaw of them, one in- Brawner’s was judication, affecting not as jured pushed when he or was struck insanity acquit- number of ground. fight The time was tals ..................... approximately p.m. 10:30 After 6. Elements of the ALI rule fight, party. Brawner left He told adopted by this court..... boys Mr. Ross that jumped some had a. components Intermesh of him. Mr. Ross testified that Brawner he b. The “looked like was “result” of out his mind”. the men- tal 991 Other disease............ witnesses who him saw after neurological often asso- mouth disease which is fight that Brawner’s testified defect. speech a mental disease or bleeding was ciated with his was agreed added, They had “I further that Brawner (but same witness unclear neurological, dis- mental, well as said”); every he was word he heard he angry; ease. staggering and that One
pounded mailbox with his on a fist. experts disagreed on was Where said, Brawner testified witness part de- that mental disease get my boys” come going Billy “[I’m] played Ford. fect murder going die back, that “someone is position called witnesses tonight.” be- Brawner’s Government night September was later, p. havior eleven about Half an hour seizure, epileptic with an way the not consistent m., on back to was Brawner suggestive explosive gun. and was not of an party testified a- One witness psychiatric going up reaction the context of a there that Brawner said he was Platkin In the words Dr. disorder. killed. to kill his attackers just Hospital, “He of St. Elizabeths was address, Upon his arrival at mad.” ground and fired a shot into Brawner building. called defense proceeded to He entered contrary maintained apartment party conclusion. where the progress Thus, Eugene Stanmeyer, psychol- through Dr. and fired five shots ogist Elizabeths, hallway at St. di- was asked on door. metal Two closed defense, whether, Billy killing rect as- Ford, him. counsel shots struck suming accused did minutes commit the act which a few Brawner was arrested occurred, relationship there was away. later, The arrest- causal several blocks ap- between the assumed ing act and his mental Brawner officer testified that abnormality. Stanmeyer replied peared Dr. normal, appear to be and did not affirmative, spoke clearly, that there a cause drunk, had no relationship. effect odor of alcohol about him. Later, prosecutor presented asked the Gov- had After the Government witnesses, ernment’s first non-expert witness Weick- of its Dr. evidence you hardt: “Did . judge in- . ruled . there was come trial opinion concerning whether or not the evidence “deliberation” sufficient go causally crimes in this case jury: accordingly, were related to the a verdict you diag- degree acquittal illness which was directed on first objection nosed?” An
murder. form *7 was overruled. The witness expert witnesses, called both then opinion set forth that in his there prosecution, agreed defense and all relationship was no causal between suffering from Brawner was an abnor- alleged disorder and mental offenses. mality neurological psychiatric of a Brawner claims that the court erred trial The medical various- nature. labels were permitted when it prosecution expert a ly given “epileptic personality dis- as testify to in this manner. He relies on order,” “psychologic syndrome as- brain opinion Washington in United v. disorder,” sociated a convulsive States, U.S.App.D.C. 29, 129 390 F.2d “personality ep- disorder associated with (1967). or, ilepsy,” simply, explosive more “an personality.” disagree- There no Developments Insanity B. Prior epileptic ment that the condition would in this Jurisdiction ) Defense leading alcohol, be exacerbated episodes frequent episodes more History large and obtaining looms in greater intensity, perspective and ex- would also be subject sound for a like by physical acerbated blow to head. one. But the eases And are numerous. experts agreed per epilepsy se since our current mission is to illuminate defect, present, is not a mental disease or but a linger rather than over impulse purposes insanity for our to ble rule anti- past, suffices longer reflecting opinions quated, no the communi- of our a handful review insanity ty’s judgment ought as to who held defense. criminally socially liable for destructive 1. The landmark was written acts. considered the We as rule restated by Judge in Durham v. United Bazelon fruitful, more accurate and con- sidered reflection of the sensibilities Durham, law of Prior community expanded as revised and established Columbia was District of light study continued ab- Lee, (4 15 D.C. Mac States normal human behavior. key) 489, (1886) and Unit Smith v. vexing problem The second Dur- App.D.C. ed F.2d 548 designed together, ham was reach related to the which, (1929), stated a taken psychiatrists concern of called as ex- insanity, terms of test of traditional imp pert special wrong2 witnesses for their right knowl- irresistible edge problem insanity, adopted “product who Durham ulse.3 rule,” typically they often and felt Pike, were pioneered in 49 N. State v. obliged profes- to reach of their exculpated outside (1869-70), H. expertise asked, sional when were from whose criminal those insanity under the traditional rule product estab- forbidden acts of a were by M’Naghten’s Case,4 lished disease or defect. right whether the defendant from knew com- New cases have evoked much as wrong. They further felt that the nar- sparked Durham. ment It has wide- as test, rowness the traditional which spread legal-judicial interest in the com- responsibility solely framed issue of munity pro- focused attention cognitive impairment, in terms of made defining legal problems found involved impossible convey judge to the responsibility in illness. case of mental range the full of information ma- guide It as has been hailed diffi- an terial to assessment of defendant’s problem-laden cult and intersection of sponsibility. psychiatry, law and ethics science. Discerning scholarship It has been scored as unwarranted now avail- loopholethrough cunning experts’ able which the crim- asserts that the fears and might escape penalty misapprehension inal concerns reflected impact modestly, We view it more traditional law. standard designed effort, excluding terms of court’s im- relevant evidence. memorial manner of the case method that Wigmore states the rule to law, has built the common to alleviate insanity issue, “any when in and all problems previous two serious with the person conduct of the admissible rule. support evidence.” And the cases Wigmore’s problem unvary- first of these was view. The almost ing language sym- policy important raised an the courts has been bolic issue in language admit the law. We felt that the evidence of abberational be- long right-wrong/irresisti- probative of the old havior so itas *8 Lee, 489, 2. United [it States v. must be 15 490 found that D.C. defendant’s] (1886): powers reasoning were so far dethroned very plain The rule law is in or- his diseased mental condition to as plea insanity pre- deprive power der that him of the shall will to resist vail, impulse perpetrate there must have been that the insane mental party deed, though knowing wrong. condition of the which disabled to be distinguishing right him from between 200, Eng.Rep. (H.L. 4. F. 2 10 Clark & 718 respect wrong and in act com- 1843). mitted. States, App.D.C. 144, 3. Smith v. United 59 145, 548, (1929) 36 F.2d 549 :
977 consideration, jury and to do so for its condition, without defendant’s per- many, the confusion that of without supposed restrictions regard to the haps experts experienced insanity most, from tes- define used to the test timony M’Naghten under the structured jury.5 positive That contribution in the rule. “know” the term Moreover jurisprudence right one that was from “know test of traditional —and denoting the American Law Insti- tained when affective wrong” is taken as analyze problem cognitive undertook to merely tute knowledge, than rather proposed greater and a different formulation. yields knowledge, a rule widely supposed to flexibility than was difficulty A under Dur- 3. arose Meehl, The Vir- and Livermore exist. application. ham rule rule 789, M’Naghten, Minn.L.Rev. 51 tues of giving testi- devised to facilitate the (1967). 800-08 mony by experts medical the context and occupy here ourselves need not We legal rule, upon jury of a called with whether, and with the now composite to reach a conclusion that had rule, M’Naghten extent, amelio- what legal components.6 medical, moral and impulse doc- the irresistible rated pristine However statement of trine, susceptible application in- opened Durham rule to “trial door insights information and clude medical distinguish label.” Durham did be- event, ex- justice requires. as “disease,” tween “in sense of used as perts traditional felt hemmed capable a condition which is considered give test; they felt that could improving deteriorating,” of either or necessary jury judge infor- and “defect,” referring to a condition questions response mation capable change of such “and which posed, see 37 traditional test which the congenital either the result 365, F.R.D. 387 injury, physi- or the residual of a effect U.S.App.D.C. cal or mental Durham disease.” 94 as reformulated The rule 241, experts testify 214 F.2d at But permitted court medical explicate put abnormality failed properly what before medical matters Insanity responsibility Goldstein, Defense 54 the critical issue A. Wigmore jury.” (1967), citing 228 § 1 Evidence Holloway States, U.S.App. v. United and numerous cases. 3, 4, 665, (1945) : D.C. 148 F.2d contemplated start 6. Durham from the “Legal insanity tests of criminal are not jury guidance tlie would have the be the result and cannot scientific knowledge” from of “wider horizons of objective analysis judgment. available the medical than was They be based on the instinctive must rule, prior the last under the justice ordinary sense of men. This analysis question is left the ultimate justice assumes that there sense of perform “to its traditional func faculty separate which is called reason apply ... ‘our inherited tion instinct, emotion, apart and im- responsibility to indi ideas of moral pulse, that enables' individual to dis- prosecuted for [Juries viduals crime.’ wrong tinguish right between judgments. moral continue to make will] moral endows him with ” U.S.App.D.C. . . . con- . . . Our collective his acts. King also, See v. F.2d at 876. punishment not allow where science does at 323- impose blame.” it cannot ques F.2d “The application 383 at 388-389 Sauer v. United jury requires the tion for the Holloway, (9th 1957), quoting Cir. lay knowledge, evi medical “awareness to the court’s refers understanding well, dence eventually will exercise moral community judgment of the as reflected sanity judgment accused.” as to jury. . . view of the [In] . Wilson, United States complicated the decision to be nature of *9 enough 1968) (4th “There is : 463 Cir. intertwining moral, legal, made — sociopath such as [defend a about doubt require judgments will an un medical —it jury’s exercise of the for an to call ant] usually strong showing induce us judgment. judge ...” moral left a because reverse conviction 978 ingredient complex helped these sort out its essential was an mind concepts. given it a definition and to task focus the matters absence defect,” medical decide. disease or of “mental meanings experts to them attached required 4. The also Durham rule- naturally to them—(cid:127) occur which would explication along lines, notably the other meanings gave testimony o,f medical accordingly. ambiguity —and resolution inherent problem dramati- The was concerning the formulation actions that highlighted by flip cally the weekend “product” were the mental It illness. F.Supp. Rosenfield, flop case, In re 157 supplemented was v. United Carter (D.D.C.1957). petitioner was States, 235, sociopath. Eliza- as a A St. described (1957): 252 F.2d 615-616 psychiatrist person a testified that beths simple person a fact that a has not sociopathic personality
awith enough mental disease or defect not suffering That from a mental disease. to relieve him for a Monday Friday afternoon. On relationship crime. There must abe change morning, through policy at St. between the disease and the criminal Hospital, Elizabeths it was determined act; relationship must be an administrative matter justify infer- such as reasonable psychopathic sociopathic state aof ence that the act would have been not personality did a mental constitute person committed if had not been disease.7 suffering from the disease. terminology The concern that medical Thus Carter the mental clarified that legal not control culminated in outcomes merely illness entered must have U.S.App. McDonaldv. United production act, into the but must (en banc, D.C. played necessary Carter role. 1962), recognized where this court “product” identified element defect, term, mental disease or has variety rule with the “but for” of causa- meanings, upon depending various how tion. why used, it is and whom. Mental pivotal “product” term continued thing physician disease means one to a present principally problems, something treatment, bent on differ put expert faulty footing. testimony on a ent, overlapping, court if somewhat to a Assuming disease, that a mental in the legal provided of law. We definition legal sense, established, had been the fate defect, of mental disease or held that of the defendant came to be determined “any it included abnormal condition of came what to be referred to substantially the mind which affects legal jargon “productivity.” On mental processes or emotional and sub hand, obviously other it was sensible if stantially impairs behavior controls.” having imperative experts (312 851). F.2d at would “Thus pertinent knowledge speak should concerning consider crucial whether ab- the mental development, functioning adaptation and normality involved is one associated processes of these and controls.” Id. “produc- aberrant tivity” But behavior. since While McDonald men- standard was so decisive a factor the de- tal disease without equation, was not an attribute ruling permitting cisional perts ex- of circularity, it was useful testify expressly language justice administration of it made “product” because raised in a context different plain legal that clinical definitions the concern lest the ultimate issue distinct, were disease turned fact over to rather Compare Campbell regarded by v. United been the staff at Eliza- St. U.S.App.D.C. 260, 261, beths as a mental disease since (1962) : November 1957. matter, As an administrative “emo- tionally personality” unstable
979
jurors
Insanity
represent-
C.
in
Circuits
Rule Other
for the
than retained
community.
ing the
The American
Model
Law Institute’s
expressed
problem
Penal
rule
has
Code
identified
then
concurring
Judge Burger
become the
pertaining
dominant force
the law
in his
Circuit
8
insanity.
opinion
to the defense of
in Blocker:
par
spirit,
The ALI rule is eclectic in
allowing experts
hazards
taking
M’Naghten,
of the moral focus of
testify
precisely
substantial-
even
practical
of the
accommodation
“con
ly the terms of the ultimate issue are
(a
trol rules”
susceptible
term
exact and less
more
which,
apparent.
This
a course
misunderstanding
than
allowed,
danger
once
risks the
impulse” terminology),
“irresistible
responsive,
and
lay
juroi’S,
the intricacies
baffled
time,
at the same
to a rela
unintelligible
expert discourse and
tively modern, forward-looking
view
jargon may
tempted
technical
be
encompassed “knowledge.”
what is
independent analysis of the
abdicate
convenience,
again
quote
For
opinion
on which the
.
.
facts
rests.
propounded by
basic rule
Model
ALI’s
early
Carter,
As
we had warned Penal Code:
expert
that
explain
the function of an
person
responsible
A
is not
oi'igin, development
criminal conduct if at the time of such
disorders,
manifestations
mental
conduct as a result of mental disease
that would
coherent and mean-
terms
or defect he lacks substantial
ingful
jury. “Unexplained
medical
appreciate
criminality
either
enough.” (102
labels
.
.
. are
[wrongfulness] of his conduct or to
617).
U.S.App.D.C.
at
252 F.2d
require-
conform his conduct to the
however,
McDonald,
Even
we con-
after
ments of the law.
tinued to see
where the
cases
subsidiary
paragraph (2),
A
rule
was limited to the use
stating what has come to
known as
conclusory
explication
labels, without the
paragraph,
the “caveat”
had a mixed
has
underlying analysis.
of the
say
do not
We
l'eception in the courts and discussion
experts.
this was deliberated
problem
of that
will be deferred.
large
It seems in
reflect-
measure to have
counsel,
The core
rule
the ALI
been
ed tactical decisions of
perhaps
adopted,
variations,
one
problems
all save
of communications be-
appeals,
disciplines.
circuit
tween the
Federal
courts
by all that
reconsider
have come to
It
inwas
this context that the court
providing exculpation
the doctrine
Washington
came to the decision in
v.
opinions
illness. Their
States,
United
390
129
thoughtful
exceptionally
been
(1967),
expei'ts
F.2d 444
which forbade
thorough
expositions
in their
testifying
productivity
as to
al-
protected.
interests and values
United
together.
Judge
Chief
Bazelon’s
(2d
Freeman,
States
1966);
plished only through legis- whole-hearted by some, minority, and sustained albeit a lative commitment. of the members of the ALI’s Council.24 ALI, misunderstanding contrary prevailed To obviate view rejection presenting because of a concern over the recommendation of Citing Harris, Respect 20. Davis v. 160 U.S. for Persons 484-485, George Society (R. *17 16 L.Ed. S.Ct. 499 Ethics and 129-130 De 40 (1895) ; 1966). supra, Durham v. ed. 94 at 214 Royal the British Commission Capital proposed: on Punishment argues penal systems person responsible 21. Amicus that is not [A can for only long survive so as act the time of the act if] “accord sub- unlawful stantially popular suffering with the the accused was from disease estimate of enormity guilt,” (or deficiency) citing Lecky, to W. mind mental History degree ought of the that he not to he Rise and Influence of the stioh a Spirit responsible. Europe of Rationalism in held 336-337 (1891). minority, together Re- 24. The with the (Pro- porter the Model Penal Code insanity twined in the It primarily defense. put jury questions expresses concern, however, a blame over “justice.” form more, worthiness instruction without condemned to be proposal not is The saying (Br. 19) “it be that well jury suggestion as a of hand out ‘average’ American condemns prerogative of an absolute informed be mentally apparently ill.” It would ac flatly disre- only it can exercise cept approach proposed an not unlike that It is garding applicable of law. rule Reporter, the ALI under which jury in- suggestion be rather justice coupled is direc standard with a contem- the law of the matters formed capacity tion to consider individual’s in arriv- account into plates will take to Dempsey’s control his behavior. Mr. judgment community ing concern- at the import, recommendation is of like with ing composite of factors.25 simplification.27 problem some But However, con- is a substantial there remains, whether, assuming justice calls overtly east that an instruction cern exculpation for the treatment of the feasibly “justice” cannot terms mentally ill, likely is more to be may prop- what the ambit of to stricted gained jury, “average” from a with splash erly but will into account taken illness, notions of mental is malign conse- with uneonfinable explicitly large acquit set at to convict or cautions quences. Government persons impaired capacity with mental ‘justice’ will result appeals “explicit according concept justice. to its litigation issues and of extraneous arguments encourage improper brief of the D.C. Bar Association will solely “justly jury phrased terms amicus submits with a ” responsible” ‘prejudice.’ formulation in- ‘sympathy’ and the test sanity largely “would be swallowed prosecutor’s solely Nor is up by this And it consideration.” concern. giving observes that function of Flynn, appointed repre- counsel Mr. jury applied the law to be to the though defendant, puts it that even sent only facts duty court, is not community concepts applying Sparf see v. United 156 U.S. “the should blameworthiness 51, 102, 15 S.Ct. L.Ed. large, be left at or asked find out (1895), right concepts but is also itself what those are.” “a bedrock every “only and, possibly, his citizen” — amicus Public submission protection,” citing Story in Uni- Justice argues Defender it would Service Battiste, jury’s ted States v. Sumn. be beneficial to focus the attention legal questions 14,545 (C.C.D.Mass. 1835). the moral inter- Fed.Cas. No. proposed Weclisler), (1958) ‘psychopathic’ “[To] Herbert have a fessor insanity: personality way following elegant a more test of responsible expressing person for criminal moral A condemnation.” See also, Star, time of such con- About if at “The Ideas conduct Public’s (National Opinion disease de- Re- duct as result of Mental Illness” appreciate ; 1955) Center, either Kalven and fect liis search H. Jury criminality Zeisol, conduct of his H. The American requirements his conduct conform (Br. 78) proposes 27. He an instruction substantially impaired that is so of law up “It this crucial sentence: responsible. justly be held he cannot you to decide whether defendant had such (a) proposal appears alternative This condition, if he abnormal mental paragraph Penal Code Model imjrairment did whether was substan- (em- 4, 1955) (Tent. No. 4.01 Draft § enough, tial and was so related to the added). phasis ought crime, that he commission *18 supra, responsible.” (Emphasis note 6. not ed.) held add- authorities cited be 25. See Psychiatry, See, g., Szasz, e. Ethics and Law, the Criminal 58 Colum.L.Rev. impressed by the morality We are observation domain of and religion, Goldstein, gears governed may by Professor Abraham particular S. one problem the most seeking careful students instance of the individual salva- judgment The tion. of a court of law general overly may standard [The] justice must community, further to the great upon place too burden safeguard against undercutting and provides standard, jury. If no the law and evasion from overconcern for the jury placed members are in the individual. What this reflects is not the having position difficult to find a rigidity of justice eye retributive —an responsible man for no reason other eye an justice awareness how in the —but feeling personal than their about him. may by broad be undermined an excess psyches Whether of individual compassion passion. well as Justice strong enough jurors are to make that community penalties includes need- decision, whether “law” should cope ed to with disobedience those obligation put them, open is to capable control, undergirding a social question. serious It is far easier for broadly environment inhibits be- perform assigned them to the role good. havior destructive of the common legislature them and courts open society An requires respect mutual know-—or are able to rationalize —that regard, mutually and reinforcing and “required” their verdicts law.28 relationships among citizens, its and its referring Goldstein justice Professor safeguard ideals of must the vast “justice” the broad majority standard recommend- responsibly who shoulder the Royal ed But the implicit Commission. liberty. burdens in its ordered problems remain acute even with the aspect justice Still another is the re- proposal modifications Reporter, quirement of the ALI for rules of conduct that estab- “justly for that still leads to generality, neutrality lish reasonable and responsible” ultimate and critical constancy. Fuller, Morality Cf. L. term. (1964). concept Laws 33-94 This neither absolute, static nor but it would tug appeal There be a sapped by a rule that invites an ad suggestion justice that law is a means “just” hoc redefinition with each jury appropriate and the tribunal new case. justice. simplistic ascertain This is a syllogism logical fallacy that harbors the justice It propounded sense of equivocation, and take fails to account by charged making those of the different facets and dimensions declaring legislatures law— concept justice. We must not be lays per- courts-—-that down rule beguiled by play on words. The thrust capacity without sons substantial to know of a rule jury that in essence invites the control act shall be excused. ponder impairment the evidence on applying is concerned with the com- appreciation, defendant’s munity understanding of this rule broad just, then do what to them seems particular lay and medical facts. “just” focus on what seems as to the naturally particular Where matter is unclear it individual. Under justice eenturies-long call will on its own sense of pull of the Judeo-Christian help it determine the There is ethic, likely suggest matter. this is a call for generally understanding wisdom in the forgiveness view that of those enough that an instruc- against well understands who have committed crimes gives composed tion flexible terms society, plead pas- the influence of that, so without dis- justified grievances sufficient latitude perhaps sionate regarding instruction, provide against it can grievances society, perhaps instruction which lacking application wholly In the in merit. Insanity Goldstein, 81-82 Defense 28. A. *19 indica- justice.29 Donald to ALI will taken an be as its sense of harmonizes tion that this court intends that generally communicates ALI rule The insanity percentage of number meaning. v. United Wade acquittals not the That is This be modified. supra,, at 70-71. today, might adopted by of the rule recognized who intendment those even forecasting any nor have do we basis explicit of statement prefer a more thing, however, effect. one It matter.30 jury’s even welcome
tolerate
concerning
a.
the use
data
Statistical
its
equity
that affects
as a force
of
sense
insanity in
in this
of
criminal
trials
which state
application
instructions
of
presented
jurisdiction
were
legal
crystallize
re
rules
15, 1966, Report
Presi-
December
by
justice
determined
quirements of
Commission on Crime in the Dis-
dent’s
community.
It is
of
the lawmakers
trict
data have
of Columbia.31 These
large,
jury at
quite
set
another
brief,
up-dated
Dempsey’s
been
in Mr.
its
to evolve
crystallization,
such
without
helpfully
by
supplied
with the aid of data
justice.
legal
of
standards
rules and
own
Attorney’s
the United
At
States
office.
counter-productive
likely
It would
by
least since
modified Mc-
Durham was
larger
justice
contrary
of
interest
to the
Donald, insanity acquittals
have run
explicit
effort
so
to become
—in
all
In
about
of
cases terminated.
2%
very oc
point home to the
hammer
years subsequent
McDonald
seven
be too
would otherwise
casional
guilty by
verdicts of not
reason of
rigid
on
puts
strains
serious
one
averaged
insanity
per
—that
annum.32
system of
operation
normal
by
court,
trials
there has been an
justice.
criminal
average of
verdicts of
annual
about 38
by
Taking
guilty
not
insanity;
these
into
reason
considerations
all these
typically
ALI
are cases where the
rule
Government
we conclude that
account
agreed
productive
psychiatrists
of in-
crime
is not
as announced
product
proclaim
of mental
justice,
illness.33 We
decline
and we
perceive
responsible”
no
“justly
standard.
in these data for
basis
broad
percentage
conclusion
the number
contemplated as im-
insanity acquittals
ALI
rule
5.
either
been
adjudication,
proving
process
inadequate.
excessive or
insanity
affecting number
not as
forecasting
way
We
no
what
acquittals
verdicts,
juries
will
the effect on
judges, from the reduction in influence
Dempsey
Amicus
concerned
“productivity”
on
change by
Durham-Mc-
this court
Demp-
Appendix
appear
C Mr.
Zeisel,
data
and H.
The
H. Kalven
29. See
sey’s brief,
submission of
as revised
par
(1966), passim,
Jury
American
Sept. 21,
seq.
1971.
ticularly
5, 8, 12,
Chapters
15 et
See
provides
Dempsey
termi-
data on all
Follow-up:
Jury,
Mr.
Rifkind,
also,
The data
1970).
1964-1968.
(July,
nations
for fiscal
Magazine
Center
years
termina-
five
show 7537
these
Attorney
response
g.,
e.
30. See
tions,
guilty
of not
and 194 verdicts
v. United
in Ramer
General
insanity.
termina-
The other
reason of
(9th
banc,
564, 575,
en
n. 10
Cir.
guilty
plea,
on
3500 verdicts of
tions are:
1968).
trial,
guilty
after
verdicts
Mentally
guilty.
ch.
III:
verdicts
31. See
section
“Experience
Offender,
Un-
subsection
trials
the amicus
These
are discussed
Rule,”
p. 534 ff of the
der
Durham
Chambers,
con-
submission
David
including
Report,
Tables 1--10.
report
sultant,
prepared
who
Elizabeths
at St.
For
John Howard Pavilion
decided
32. McDonald was
Hospital
Hospital,
years
1964-1970,
ending
submitted
fiscal
June
guilty
Mental Health.
National
Institutes of
21 verdicts of
there were
insanity
by jury,
most
characterizes
Chambers
in trials
Professor
reason of
insanity
more
courts
trials
These
verdicts
in trials
court.
such
*20
dubious,
do- which is
judgments
would
outside the
reflects
effect,
may
that the crime
reason
been
of.expertise.34
its
Whatever
main
“product”
a
adopted to-
of the mental condition of
rule
that the
we
confident
though
relationship
man
even
he retained substantial
day provides a sounder
capacity.
giving, comprehension and
terms of
testimony.
Our ob-
application of
analysis, however,
In the last
if there
jury's verdict
jective
steer
is not
is a case where there would be a differ
deliberation.35
enhance its
but to
ence
it would seem rare
result —and
underlying
think
—we
freedom of
judges
the ALI
have viewed
b. Some
assign
just
conception
will
renders
beyond
going
Durham in
as
test
enlarging
though
responsibility
person,
even
category
persons
who
of
impaired,
his
if his
controls have been
report
acquittals.36 The 1966
win
give
(cid:127)residual controls
him “substantial
the President’s Crime Commission
wrong
capacity”
appreciate
both
(supra
15) apparently
note
concludes
fulness of
conform it
his conduct
debate over Durham was
stilled
requirement
to the
of law. Whether
McDonald, and that Durham-McDonald
given
the ALI
is to
a narrow
standard
significantly
different
content
conception
or broad
rests not on abstract
contrast, Mr.
from the ALI test.
Dempsey
analysis
application
but on
reflect
person’s
concerned that
ing
underlying
responsi
sense of
ability
control his
could be
behavior
bility
jury,
community’s
as the
“substantially
impaired” mental condi-
surrogate.38
tion,
qualifying
thus
the defense under
leaving
McDonald, while
him
still
adopted by
6. Elements
the ALI rule
rendering
capacity,”
“substantial
this court
defense unavailable under the ALI rule.
Though
general
knowing
way
provides
We
uni-
have no
whether
psychiatrists giving testimony
formity,
the ALI
leaves room
would
rule
Thus,
distinction,
have added an
draw such a
and moreover
we
variations.
adjustment
there
in the McDonald definition of
would be no difference in result
indulges
disease,
fully
assumption,
unless one
mental
think
also
which we
nearly
significant
comparable
taking
consensus;
guilty
there was no
dif-
to the
juries.
stipulated
percentages
hung
pleas consisting
of a
ference
state-
—
Jury
facts;
conclusory
Simon,
Hospital
ment of
R.
and the Defense
Insanity
port
(1967).
product
the crime was the
ff.
illness;
supporting
mental
and brief
tes-
Trask,
J.,
36. See the
for six
timony
single
psy-
from a
John Howard
judges
Circuit,
of the 13
on the Ninth
chiatrist —all
in a
“tacit
context of a
Wade v. United
explicit understanding”
the defendant
79.
will
not contest
indefinite commitment
Dempsey
Hospital.
37. Mr.
the ALI
concerned lest
assigns
capacity
test
unless
Any
analysis
productivity
such
vagrant
has been reduced “to the
and verdicts not
would
trivial
dimensions
characteristic
require prodigious
effort,
time and
mind,”
most severe afflictions of the
see
might
the,
well be inconclusive in view of
Wechsler,
Law
Codification
Criminal
way experts
testifying
“product”
in the United States:
The Model Penal
issues
come
diametric
differences
Code,
1425, 1443
68 Colum.L.Rev.
the same trial.
depend
application
in fact will
But
analysis
jury’s applica-
cynical
We
in the last
do not share the
view that
community standards
to the evi-
treats
tion of
instruction
devoid of
con-
sequence.
study
In a
dence adduced.
of the reactions of
jurors
more than a thousand
ex-
to two
38. Even
McDonald the
has fre-
under
perimental
involving
trials
a defense of
brought
guilty,
quently
in a verdict of
juries
insanity,
it was
found that
de-
plainly
exculpatory
when the
rules would
significantly
longer
in-
liberated
when
contemplate,
permit,
a verdict of
or even
structed
under Durham
insanity. King
than
under
guilty
reason of
M’Naghten.
States, supra.
Yet
this did not undercut
v. United
Presumably
spirit and text
compatible
with both
disease
good
kleptomaniac
In the interest
does not entail
a “result”
ALI rule.
administration,
to set
a lack
now undertake
the law
to conform
subject
prohibiting rape.
precision
forth,
as the
with such
*21
ALI
permit,
elements
other
will
At the time
c.
adopted
this court.
conduct.
rule
of
components
the rule
two
The
main
rule the
is
Under
issue
ALI
disease,
(2)
the con-
define
mental
not
is
whether defendant
disoriented
so
exculpate from re-
sequences thereof that
or
he is
void of controls
never able
sponsibility.
demands,
to conform to external
but
capacity
he had
at
time
whether
components
Intermesh
a.
question
not
the conduct.
The
is
properly put
he
terms of whether
rule,
component
first
capacity
would have
to conform in some
McDonald,
mental
defines
from
derived
restraining
untypical
situation —as with
condi-
as an abnormal
or defect
disease
policeman
an attendant or
at his elbow.
which
mind, and a
condition
tion of
The issue is whether he was able to con
substantially
(a)
mental
affects
form in the unstructured
condition of
(b)
impairs
processes
emotional
open society,
life
whether
com-
The second
controls.
behavioral
result of
mental
his abnormal
condition
Penal
the Model
ponent,
from
derived
was a lack
con
of substantial
internal
a mental
tells
defendant with
Code,
brought
These matters are
out
trols.
responsibility
for
disease lacks criminal
the ALI’s comments
to
4.01
§
particular
is
defendant
conduct:
#4, p.
Model Penal Code Tentative Draft
condition,
who,
as a result of this
158:
(i)
conduct, either
such
the time of
appreciate
capacity
schizophrenic
to
lacks substantial
is dis-
...
wrongful,
(ii)
reality;
his
conduct
is
oriented from
the disorienta-
capacity
extreme;
rarely
conform
tion
lacks substantial
to
is
it is
total.
but
psychotics
respond
to the law.
Most
com-
conduct
will
to a
authority
mand of
someone
within
component establishes
The first
they
hospital;
the mental
thus have
concerning
eligibility
an instruction
capacity
some
to conform to
norm.
a
presents
a
who
the defense for
defendant
very
But
this is
different
from the
evidence that his abnormal condition
whether
impaired
substantially
mind
capacity
requirements
to conform to
com
behavioral
controls.
The second
immediately symbol-
that are not thus
ponent
completes
the instruction
policeman
ized
an attendant or
exculpa
issue, of
defines
the ultimate
Nothing
inquiry
makes the
elbow.
tion,
behavioral
terms of whether his
for the
into
more unreal
substantially
only
im
controls were not
psychiatrist
of the issue
than limitation
paired
impaired to
an extent
such
in-
to some ultimate extreme
total
capacity to
lacked substantial
capacity,
experience
when
clinical
conform
law.39
his conduct
graded
only a
with marks
reveals
scale
along
way.
mental disease
“result”
b.
requirement
The rule contains
wrongfulness
Capacity
appreciate
d.
causality,
the term
as is clear
his conduct
Exculpation
“result."
established
terminology
option of
As to the
if “as
mental disease alone but
code,
adopt
the ALI
noted in
substantial
result”
lacks the
defendant
exculpates a defendant
formulation
responsibility.
capacity
required
appreciate
capacity
conduct
exculpated
substantial
if he lacks
is also
39. Defendant
wrongful.
logic
lure
whose mental condition
such that he
order to make certain
capacity
appreciate
jury
give
lacks
that the
stantiality
substantial
will
heed to the sub-
wrongfulness
of his conduct. We
of a defense of lack of sub-
grounds
prefer
pragmatic
“ap-
capacity
appreciate wrongful-
this on
stantial
preciate
criminality
ness,
point
may
jury
of his conduct”
elude a
in-
resulting jury
solely
structed
capacity.
since the
instruction is
in terms of control
given
conventionally
particular case, however,
more
like that
jury.
applied
request
such an
defendant
While
have reason to
subject
phrase pertaining
instruction is of
to the ob- omission
course
to lack
jection
complete precision,
appreciate
wrongfulness,
that it
lacks
calling
objective
particular
it serves the
matter
involved on
community
provide
judgment
facts,
and defendant fears that a
*22
on
rigorously
a
of factors. And since
does
combination
not attend
to the
possibility
analytical
the
differences
details of the instruction
erroneous-
ly suppose
between the two formulations is insub-
that the defense is lost if de-
appreciates wrongfulness.
stantial
in
in
fendant
fact
view
the control
Here
capacity test,
usefully guided by
again,
enough
rely solely
we
it is not
to
pragmatic
pertinent
logic,
simple change
jury
the
considerations
when a
will aid
jury
understanding.
to
instructions.40
case,
In such a
if de-
requests,
judge
fendant
the
should limit
adopting
In
formulation,
the ALI
this
the instruction
the
issue involved in
court
does not follow the Currens
case,
charge
jury
that the
shall
puts
of the Third Circuit, which
it that
bring in a
guilty
verdict
if as a
every
the sole issue in
case is defendant’s
result of mental illness defendant lacked
capacity
behavior,
to control his
and that
capacity
substantial
to conform his
analysis
a
person
as matter of
a
who
requirements
conduct to the
of the law.
capacity
appreciate
lacks substantial
wrongfulness
[criminality] of his
paragraph
e. Caveat
necessarily
conduct
lacks substantial
capacity to control his behavior. Like
Section 4.01 of the Model Penal Code
circuits,
promulgated
other
by
resist
Currens
ALI
in
contains
sub-
M’Naghten’s case,
200,
Goldstein,
In
Insanity
& F.
in
Cl.
lected
A.
De-
211,
Eng.Rep.
(H.L.1843),
fense,
*23
decisions, of
and
and Wade
the Sixth
(from
definition of mental disease
Mc
Circuits,
it
Ninth
should be
conclude
Donald).
definition,
Under that
as
position is
omitted. The
Circuit’s
Sixth
pointed out,
the mere
of
existence
8)
(404
fn.
that
there is
long
“a
criminal record does not excuse
“great
psychiatric
dispute
over
crime.” Williams United
paragraph.
soundness”
the caveat
of
U.S.App.D.C. 135, 137,
the matter at
Wade
considers
(1962).
require
do not
We
the caveat
great
length
puts
and
forward three
against
paragraph
as an insurance
grounds
para-
rejecting
for
the caveat
exculpation
of
deliberate
and
(1)
graph:
practical matter,
it
As a
persistent
offender.42 Our McDonald
keeping
would be
ineffectual
socio-
guards against
danger
rule
misun
paths
insanity;
out of
definition
derstanding
injustice
might
and
that
always possible
it is
to introduce some
arise, say,
expert’s
from an
classifica
evidence,
past
other
than
criminal
only
conception43
tion that
a
reflects
behavior,
support
plea
insanity.
a
defining
criminality
all
as reflective
Draft, p.
41. See Comments to Fourth
160 :
agreed,
whole,
psychop-
had
on the
Paragraph
of section
is
4.01
athy
“disease,”
should not be called
designed
concept
to exclude from the
opin-
there is considerable
difference
of “mental disease or defect” the case of
point
ion
on
the United States.
“psychopathic
personality.”
so-called
Yet
it does
seem
not
useful
to contem-
that,
The reason for the
as
exclusion
plate
litigation
of what
essen-
Royal
it,
put
psychop-
Commission
tially
terminology;
a matter of
nor is
athy
abnormality;
a
“is
statistical
legal
right
it
to have the
result
rest
say,
psychopath
is to
differs
upon
dispute
of a
of this
resolution
person
quantitative-
from a normal
kind.
ly
degree,
qualitative-
adopt-
42. We
note
the Second Circuit
ly
diagnosis
psychopathic
and the
:
paragraph
ground
ed the caveat
on the
personality
carry with
does not
explanation
of the causes of the ab-
contrary holding
would reduce to ab-
normality.”
While
be feasi-
surdity
designed
encourage
a test
full
“dis-
ble to formulate
a definition
analysis
psychiatric
of all
data
ease,” there is
to be
for ex-
much
said
exculpate
knowingly
would
those who
cluding a condition that
manifested
deliberately
seek a life of crime.
only by
phenomena
the behavior
(Freeman,
625).
357 F.2d at
must, by hypothesis, be the
result
irresponsibility
See,
g.,
Abrahamsen,
for
be estab-
disease
e.
D.
Who Are the
Although
psychiatrists
Guilty?
lished.
British
testimony
illness. There must
mental
be
do not
We
think it
to use the
desirable
paragraph
to
suffering
the defendant
show both
caveat
as a
for instruc-
basis
jury.
condition
an abnormal
the.
tions to
It
difficult
would be
substantially
juryman
anyone
affect-
for
the mind
that it
else—to
—or
processes
ed
or emotional
paragraph
mental
reconcile the
caveat
substantially impaired
(McDonald)
con-
behavioral
mental
basic
definition of
psychiatrist
trols.
if a
disease
that he
testified
particular past
discerned from
criminal
context,
ap-
pragmatic
In this
pattern
de-
behavior
that established
proach
adopt
paragraph
is to
the caveat
suffering
fendant
from an abnormal
application by
judge,
as a
for
rule
substantially
condition
impaired
mind that
miscarriage
justice,
avoid
but not for
If there
behavioral controls.
jury.
inclusion
instructions to the
testimony,
would
is no such
then there
be
judge
that the
will be aware
no
that mere
evidence
misconduct be-
of a
criminal and antisocial conduct
illness,
im-
mental
it would
tokens
person
home, in
street,
—on
permissible
present
for
defense counsel
necessarily
infor
material
the ward—is
hypothesis
jury,
such a
to the
and there
psychia
for
mation
assessment
very
would
little
likelihood that
rarely
hand,
On the other
if ever
trist.
proposition
would arrive
such a
its
psychiatrist
conclusion
would
base a
hand,
own.
other
an instruction
On
solely
disease
mental
on criminal
along
paragraph
lines of the
caveat
pragmatic
acts.
solution
anti-social
provides
Our
appearing
risk
runs the
rejection
for the
to call
reshaping
rule,
ap
based
plication by
court,
as follows:
materially,
only partially,
proffer
past
introduction or
criminal
o.f
history of criminal conduct.
and anti-social actions is not admissible
unless ac
evidence
disease
presentation
f. Broad
*24
by expert testimony, support
companied
showing
by
ed
of a
of the concordance
adoption
the ALI
Our
segment
responsible
professional
depart
from
doctrines
rule does
opinion,
particular
that
character
past
up
over
court
built
istics
these
con
actions constitute
presenta
twenty years to assure a broad
vincing
underlying
evidence of an
concerning
condition
tion
substantially
impairs
that
disease
conse
mind and its
defendant’s
rulings
behavioral controls.
quences. Thus
adhere
our
we
admitting
testimony
psycholog
expert
paragraph
formulation
This
retains the
ists,44
psychiatrists, and
as well as
as a “caveat” rather than an inexorable
many
contemplating that
decisions
rule of
It should
law.
serve
obviate
testimony
subject
will be
on this
present
distortions of the
state
knowl-
by presentation
facts
edge
accompanied
miscarriages
that would constitute
opinions
underlying
justice.
premises
and
open—
Yet it
leaves
door
experts,45 and that
shouldering
“convincing
and
conclusions
evidence”
pre
may
and defense
general
Government
burden—to
rule
accommodateour
words,
Judge
“all
sent,
developments
Blackmun’s
may
lie
It is
ahead.
bearing on
possibly
evidence”
unfeasible,
relevant
imperfect,
kind
but not
cognition,
capacity.46 We
volition and
accommodation of
abstract
agree
pragmatic
the amicus submission
with
often found
serve
Attorneys Association
justice.
National District
the administration of
Garter,
opinions
Durham,
States,
U.S.App.
g.,
45. E.
v. United
Jenkins
113
Judge
Washington,
300,
(en
1962)
banc,
F.2d
McDonald
D.C.
concurring
(assuming
Burger’s
experience
in Blocker.
substantial
diagnosis of disease in
association
Pope
F.2d
v. United
psychiatrists
neurologists).
or
1967).
(8th Cir.
range
twisted,
“distinguish between
the normal
is not
to be
cannot
the law
directly
indirectly,
into a
for
emotional,
cul-
device
social and
physiological,
exculpation
impairment”
of those without an abnormal
tural
sources
—as-
course,
condition of the mind.
requisite
suming, of
perti-
establishing exculpation under the
Finally,
sugges-
accepted
have not
may
causes
all such
nent standard —and
adopt
disentangles
tions to
rule
by
expert and
referred to
be both
insanity
defense
a medical
of fact.47
trier
considered
model, and announces a standard excul-
pating anyone
capacity for control
whose
insanity
input
Breadth of
under
insubstantial,
whatever
cause
defense
is not
confused with
be
logic
may
reason. There
be
these sub-
establishing the
doctrines
breadth of the
missions,
sufficiently
are not
cer-
but we
At-
As
District
defense.
the National
nature,
range
implica-
tain of the
out,
torneys
points
Association brief
attempt
tions of the conduct involved to
g.,
of e.
salient evidence
latitude
all-embracing
theory.
an
unified field
pertinent
social and cultural
factors
applicable rule
as
can be discerned
sig-
condition
mind
abnormal
regard
the cases arise
to other condi-
nificantly
affecting
capacity and con-
tions —somnambulism or other
autom-
trols,
such factors
does not mean that
atisms;
due,
g.
blackouts
e.
to overdose
establishing
may
separate
taken
insulin;
drug
addiction. Whether
persons
mental condi-
defense for
whose
gov-
these somatic conditions should be
imposed.
tion is
can
such that blame
comparable
erned
a rule
here-
to that
rejected
“injustice” ap-
a broad
We
forth
set
for mental disease would
proach
opened
door
would have
require,
minimum,
judicial
at a
de-
expositions
g.,
depriva-
of e.
cultural
termination,
opin-
which takes medical
tion,
unrelated to
abnormal condi-
account, finding convincing
ion into
evi-
tion of the mind.
dence of an ascertainable condition char-
recognized
“Many
crim-
We have
acterized
“a broad
that free
consensus
inologists point
normal
out
even
will does not exist.” Salzman v. United
human
influenced
such
behavior
environment,
pov-
training,
factors
(concurring
opin-
erty
like,
and the
limit
Judge Wright).
ion of
understanding
options of the indi-
King
States, supra,
vidual.”
v. United
Imple-
E.
Inter-related Doctrines
*25
U.S.App.D.C.
323,
at
task of
persons
commitment
ruling.
required by
by
insanity,
tices and routines
reason of
set forth in sub-
governing
(d),
provisions
section
Burden of Proof
committed,
persons
set
release of
so
Appendix
alternate
B contains
word-
(e).
forth
subjection
ings
wording
proof.
on burden of
One
Lyles
U.S.App.
v. United
conforms to
v.
the doctrine of Davis
1957),
22,
banc,
(en
254 F.2d
D.C.
160 U.S.
16 S.Ct.
majority
concurred
court
(1895),
L.Ed.
the Govern-
Judges
by
Part
I
filed
beyond
proving
ment has
burden of
Prettyman
Burger
jury,
a
doubt
the defendant
reasonable
meaning
of verdict
which knows
a
exculpation
was not
entitled
as a
right
guilty
guilty
and not
“has
sult
of his
defect. The
disease or
meaning
insanity] ver
know the
of [the
wording
other version is
cast
accurately
common
as
as
knows
dict
the last
sentence
24 D.C.Code §
knowledge
meaning of
other two
(j), as added to the law in
“No
1970:
said,
possible
court
verdicts.” The
person
accused
an offense
ac-
shall be
U.S.App.D.C.
728:
quitted
ground
on the
that he was insane
think that
instruction
We
when the
at the time of its commission
his
unless
given
simply
in-
should
insanity,
regardless of who
raises
guilty
of not
formed
a verdict
issue,
affirmatively
established
insanity
ac-
means that
reason of
preponderance of the evidence.”
hospital for
confined in a
cused will be
Questions have been raised as to the
mentally
superintend-
ill until the
constitutionality
provision,49
of this 1970
certified,
court is
ent has
and the
sat-
applicability
its
to offenses committed
isfied,
person has recovered
that such
prior
enactment,
ap-
the 1970
and its
sanity
not in
reason-
and will
plicability to offenses committed in the
dangerous to himself
able
future
District of Columbia which
not
viola-
others, in
event and at which
tions of the D.C.Code but are violations
his release
time the
shall order
court
of the United States Code.50
doWe
unconditionally
such
either
or under
appropriate
ques-
think it
to decide such
fit.
conditions as the court
see
time,
accordingly
at this
tions
provided
of such
for omission
The court
provided alternate versions in the in-
request
on the affirmative
instruction
suggested
Appendix
struction
B.
of a defendant.
vi
Harris,
Bolton
“Lyles”
2. The
instruction —as
effect
301(d)
F.2d 642
read
§
guilty
verdict
reason
mandatory
permitting
commitment
insanity
examination,
purpose
of a mental
By
August 9, 1955, passed
judicial
containing
requirement
statute of
Durham, Congress
hearing,
the wake
added
of whether
301, provisions
ought
24 D.C.Code
on man-
retained
involved
to be
§
defendant
*26
By
207(6)
majority
§
Court Reform
D.C.
tlie.
also believes
Commission
1970,
dissenting justices
and Criminal Procedure Act of
P.L.
the
the views of
Oregon
grounds
91-358.
in
for
Leland v.
*
* *
believe that
there
caution.
We
g., Bazelon,
J.,
concurring
E.
C.
in
question wheth-
is
least a substantial
Eichberg,
U.S.App.
United States v.
142
prove
requiring
in-
er
the defendant
to
110, 114,
620,
(1971),
D.C.
439 F.2d
624
sanity
upheld
in a Federal
would be
court
vitality
Oregon,
where the
of Leland v.
by
Supreme
the
Court.”
790,
1002,
343 U.S.
72 S.Ct.
96 L.Ed.
(1952)
questioned
Thompson,
1302
is
in view of In re
50. United States v.
147 U.S.
Winship,
358,
App.D.C. 1,
(1971).
25
397 U.S.
90 S.Ct.
hearing to determine within 50 has to do with responsibility re- entitled to defendant because defendant of a whether hearing condition,52 impaired the defendant but In that his mental lease. proof. determining defend- de has the rather burden with whether custody, must remain in and will be that ant will fendant had the mental state custody only proved entitled to release be as to all defendants. by preponderance of if the court finds Procedurally, of abnormal the issue likely in- not the evidence that he is negativing person’s mental condition persons jure himself or other due ways: may intent arise in For different mental illness. example, may evi- defendant offer possibility of an qualifying As attack dence mental condition not onJ constitutionality 301(d)(2), Or as mental disease McDonald. § under may has not been that briefed qualifies un- tender evidence being argued, yet may and it not now decided.51 McDonald, der conclude
from all the evidence that defendant knowledge and control sufficient though condition, 3. Mental insufficient for under the ALI rule. exonerate, may spe- be relevant certain mental element of cific crimes or often re issue arises with degrees crime. spect to mental condition tendered as negativing premeditation the element accompanies decision redefini- Our charge degree premeditated in a of first tion of when a mental condition exon- murder. As we noted in Austin v. Unit respon- erates a defendant from criminal U.S.App.D.C. 180, ed sibility expert tes- with the doctrine legislature (1967), F.2d 129 when the timony as to a defendant’s abnormal modified common law crime of mur may mental condition received and be degrees, der so as to establish murder considered, show, tending degree the first reserved inten was for sponsible way, did that defendant deliberately tional homicide done specific required have the mental state premeditation, and homicide that particular degree for a crime crime or “impulsive,” intentional done but though act —even he was aware meditation,” “reflection and after was wrongful able to control only degree. it, made murder the second complete and hence was not entitled to (127 U.S.App.D.C. at 382 F.2d exoneration. 135). following doc Some cases this respon trine use the term “diminished An offense like deliberated sibility,” example prefer premeditated requires spe murder (e. g., note eases that avoid term cific intent satisfied cannot 57, infra), is out merely by convenience showing its failed defendant weighed by doctrine its objective confusion: Our to conform an standard.53 part In Bolton “partly responsible,” the Court relied therefore en acquittal the circumstance reducing degree titled to a verdict insanity only might reason of reflect Code, the offense. Model Penal Com See sanity. doubt as to 201, app. (Tenta This affected ments to Art. B at 111 provision putting quoting the 1970 the trial 9, 1959), Eng tive Draft No. in- burden on defendant to establish his lish Homicide Act of 5 & 6 Eliz. sanity. 2, c. 11. addressing We are not ourselves to the degree 53. The term “malice” in second procedure if a court that would result murder has been extended to include reck 301(d)(2) concludes that is unconstitu- § lessness where defendant had awareness tional. danger displayed of a life serious 52. Our disregard doctrine is from the different doc- wanton life. Lee human “partial responsibility” per- trine of App.D.C. 147, 150- ; mits to find that a defendant’s Aus 49-50 States, supra, U.S.App- condition was such that he tin v. United
999 “incapacitating ne- state” as to by defense such plainly This is established citing gate notes, he also Hopt intent.' But voluntary v. In intoxication. Hopt, Bishop, lesser state of 634, that a 631, 873 Utah, L.Ed. 26 104 U.S. negate drunkenness, stating to insufficient Court, (1881), after robbery, may specific required voluntary for intent intoxication familiar rule negate premeditation re- suffice crime, said: is no for excuse degree quired first murder. for establishing differ- a statute [W]hen logic justice tolerate can nor degrees requires Neither deliber- ent murder jurisprudence defines the elements a premeditation in order to consti- ate requiring a mental state of an offense as degree, murder in the first tute properly one can ar- such that defendant the accused is whether voluntary gue re- mind, his drunkenness by reason of such a condition of specific capacity moved his to form the otherwise, be as to drunkenness inhibited intent but another defendant is premeditation, capable of deliberate from a contention that necessarily subject submission his a material becomes condition, for which an abnormal mental jury. of consideration way negated responsible, no States, App. Bishop In v. United particular specific in- to form a (1939), 132, 136, 297, D.C. 107 F.2d tent, though the did not even condition volun Justice noted that while Vinson responsi- him all exonerate from criminal tary per intoxication se is no defense bility. guilt, defend condition of a “the stated killing mind ant’s at the time United 80 U.S. Fisher v. subject proper . now 96, (1946), App.D.C. 149 F.2d consideration, inquiry, and determina upheld trial court’s refusal court “voluntary jury.” in tion Thus pre that on instruct issues murder, toxication will not but excuse and deliberation “it should meditation may negative ability of the defend personality of the de consider the entire premeditation, ef ant” and hence nervous, mental, fendant, his emotional degree fect “a to second mur reduction developed physical characteristics as der.” the case.” Justice evidence Judge Enlarging Hopt opinion was evi Bishop, Arnold’s abbreviated on Burger’s opinion dently (1) premised United on factors: Heideman v. two U.S.App.D.C. 128, 131, 259 the instruction issue confused the 943, points insanity (1958), out: with the issue of delibera tion; give (2) “To an instruction per is not an excuse Drunkenness se like the above is tell crime, may in but nevertheless liberty acquit at one who commits many is- instances relevant be brutal crime because he has the abnormal of intent. cases sue One class of capable persons tendencies of of such on where drunkenness relevant crimes.” effort His made no category the issue is the of intent Hopt opinion, come to terms with the specific crimes intent where stressed Fisher’s counsel. Robbery quired. falls into cate- this gory, and a of rob- defendant accused Supreme Fisher went Court bery entitled to an on instruction affirmed, limited there was bearing on intent drunkenness ground of disinclination “force” evidentiary groundwork has been legal court in a doctrine for the choice of adequately laid. Columbia, 463, District of 328 U.S. Judge Burger points 1318, As must out there S.Ct. L.Ed. 1382 showing (at 1325) does 476, drunkenness Court said at 66 S.Ct. inhibitions, change more properly than remove that such was “more 133; (concur- D.C. 382 F.2d Dixon, ring opinion). States *29 1000 overwhelming legislative adopted by the has been exercise subject recently majority of courts for the discretion have least or at power question. faced are convinced We District.” the courts analysis opin- in set forth the recent I, v. United Stewart In Stewart highest California,55 ions of the courts 293, 879 214 U.S.App.D.C. 94 Colorado,56 Jersey,57 Iowa,58 Ohio,59 New after two weeks issued (1954) which Connecticut,61 Nebraska,62 Idaho,60 New announced, we said
Durham was
They
Mexico63 and
have
Nevada.64
decision
of our
“reconsideration
joined
spoke
the states that
out before
appraise
until we can
wait
should
Fisher
York,
Utah,
Island,
Fisher —New
Rhode
v.
In Stewart
Durham].”
[of
the results
Wyoming.65
and
Wisconsin
159,
275
States, 107
again
the court en banc
(1960),
succinctly
F.2d 617
reasoning
pertinent
was
experience
Dur
with
more
stated that
Supreme
Court
the Colorado
stated
Fisher, and
required
evaluate
ham
was
follows:66
legisla
appropriate
the matter
not
determined is
Stewart
That was
consideration.
tive
insane, but
defendant was
whether
II.54
com-
the homicidal
whether
act
banc,
premedi-
again
Today
en
mitted with deliberation
we are
years
in-
many
offered as
tation.
evidence
benefit
we
may
sanity
experience
Durham-McDonald.
be relevant
*
* *
insanity rule,
in-
changing
aon
“A claim of
issue.
We
basis,
sanity
purpose
prospective
to take into account
cannot be used for
reducing
intervening
opin
scholarship
murder
court
a crime
degree
corollary,
appro
second
deem
first
to murder
ions. As a
manslaugh-
degree
change
priate
the rule of Fisher on
or from murder
ap
perpetrator
responsible
prospective basis,
accept
and to
ter.
If
Supreme
respect,
responsible
proach
declined
at all in this
he is
which the
Court
1946,
degree
man;
upon
us
but which
the same
as a sane
“force”
independent
Gramenz,
134,
54.
no
considera
58.
256 Iowa
126
There was
State v.
(1964).
tion
v. United
129 U.S.
N.W.26
Stewart
285
303,
App.D.C.
(1968),
1005
appropriate
in
whether a
abnormal mental condition
does
new trial
insanity
justice,
ma-
rather
than con-
establish an
defense but is
interest of
sidering
appellate
terial
element of the of-
to a substantive
instance,
fense,
prospectively for all
in
level
first
because
effective
beginning
vantage point
judge
superior
date.79
trials
this
How-
trial
has a
after
ever,
assessing
doctrines of the
there is a substan-
under established
whether
judicial
possibility
jury,
tial
if instruct-
function
conclude that
we
that the
wholly
rule,
benefit
be with-
ed
would have found
of the rule cannot
under
new
our
appellant
acquitted
in whose
held from the defendant
case
should
not, however,
insanity.
do
new trial
established.80 We
reason of
If a
de-
judg-
nied,
judge
appropriate
think it
for us
determine
re-enter a
trial
will
81
juncture
guilty
this
whether
ment on the verdict of
insanity
convicted
old
stand-
under our
Supplement
Clarify
G.
Matters Dis-
To
might
acquitted
ard
under the new
Separate Opinion
cussed in
standard.
burden
While we hesitate
further,
judge
remand-
we are
the trial
A number
in
are discussed
matters
ing
judge
separate
Judge
to determine
opinion
to the trial
of Chief
circuits,
long period
other
We are aware that
without critical examination
adopting
of criminal
circuit,
the ALI
test
re
and modification.
In this
sponsibility,
departure
wrought
their decisions
have made
kind
Dur
retrospective,
g.,
which, incidentally,
pro
e.
United States v.
see
was made
ham —
(2d
banc,
Tarrago,
spective.
opinion
F.2d 621
Cir. en
In this
we have ac
1968) giving retrospective
knowledged
positive
effect
its
and retained
con
Freeman,
supra.
decision in
ever,
cited
How
tribution of the
decision in Durham
principles
applied
(see p. 977,
relating legal
supra),
we think sound
doc
—
Denno,
thinking, together
in Stovall v.
388 U.S.
trine to modern medical
ff.,
improvement
tests such as the Rorschach test be ad-
so,
missible
evidence?
If
kind
what
APPENDIX A
testimony
necessary
appropriate
February
5, 1971,
Letter of
from the
put
proper
order to
test results
organizations
Clerk to
invited
perspective?
pp.
Transcript
See
318-
make a submission
curiae.
amicus
329, 342-350, 413-452.
request
Court has
me
directed
departed
practice,
8. Have we
if
you
your
discuss
briefs the follow-
theory,
gov-
not in
that the
rule
ing questions:
proving
ernment has
burden of
crimi-
expert
case
this
all four
wit-
responsibility
beyond
nal
a reasonable
nesses
“produc-
testified on the
issue
Eichberg,
doubt?
See United States v.
tivity.”
Transcript
335-36,
pp.
See
464-
supra,
113-116,
U.S.App.D.C.
65, 506-07,
colloquy
539. But see bench
F.2d at 623-626.
Assuming arguendo
at 314-15.
9. Would it be sound as matter
Washing-
violated the rule of
policy
insanity
to abolish the
defense?
ton
U.S.App.D.C.
v.
so,
Possible as a matter of
If
law?
what
(1967),
Washing-
fense. One
premeditation
quirement
his conduct and his
and delib-
actions.
[of
degree
eration for first
specific
murder]
[or
considering
In
whether the defendant
you
-],
intent for
had a mental disease
at the
[or defect]
already
In deter-
been instructed.
time of the unlawful act with which he is
mining
requirement
whether
has
charged, you may
testimony
consider
beyond
proved
been
doubt
reasonable
concerning
development,
this ease
adaptation
you may
consider the
as
functioning
of these men-
defendant’s abnormal mental condition.
processes
tal and
emotional
behavior
controls.
you
If
find that
Government has
prove beyond
failed
reasonable doubt
term
[The
“mental disease” differs
or more of
one
the essential elements
from “mental defect” in
former
that the
offense, you
of the
must find the defend-
capable
is a condition which is either
guilty,
you
ant not
should not con-
improving
deteriorating
or
and the latter
any possible
relating
sider
verdict
in-
capable
improving
is a condition not
sanity.
deteriorating.]
or
you
If
find that the
Government
proof
[Burden
ver-
—alternate
proved each essential element of
of-
sions :
beyond
doubt,
fense
a reasonable
then
(a)
proof
The burden
is on the
you
bring
must consider whether
by preponder-
to establish
defendant
guilty by
verdict of not
in-
reason of
that,
ance of the evidence
a result
sanity.
defect,
of mental disease or
he either
provides
The law
that a
capacity
shall
lacked substantial
to conform
bring
guilty
requirements
his
verdict of not
conduct to the
reason
capacity
law or lacked
insanity if,
substantial
time of
the criminal
appreciate
wrongfulness
con-
his
conduct,
defendant,
a result
duct.
If defendant has met that bur-
defect,
mental disease or
either lacked
you
bring
den
shall
in a verdict of not
capacity
substantial
to conform
con-
his
guilty by
insanity.
reason of
he
If
requirements
duct to
law,
or
you
has not met
burden
shall
appreciate
lacked substantial
bring
guilty
ain
verdict of
of-
wrongfulness
of his conduct.
you
proved beyond
fenses
found
a rea-
Every
presumed
sane,
man is
to be
sonable doubt.
is, to
be without
disease
(b) The burden is on the Govern-
defect,
responsible
and to
acts.
beyond
prove
ment
a reasonable
longer
presumption
But that
no
controls
doubt either
the defendant was
suffering
when
is introduced
evidence
that from a mental disease or
defect, or else that
had
have a mental
he nevertheless
disease
defect.
*
U.S.App.D.C. 29, 42,
instruction,
390 F.2d
Note:
addition
insanity
(1967),
revised
accordance
submission
issue to the
jury,
judge
given
with note 82 of the
in United
will have
guidance
by reading
provided
Brawner,
States
in its
at-,
presence
the instruction to the
wit
required by Washington
ness
v. United
*37
portunity to
and
capacity
obseive the defendant
to conform
both
substantial
to
fied,
to
he has testi-
requirements
know
facts which
of
conduct to
his
willingness
wrongfulness
his
ex-
and
to
appreciate
law
to
pound freely
has
as to
observations
If the
his
his conduct.
Government
of
knowledge,
opinion
beyond a
the basis for his
this
reason-
not established
bring
conclusions,
doubt, you
and the nearness
remote-
a ver-
or
shall
able
in-
guilty by
of his
reason of
ness
observations of
defendant
not
dict of
point
sanity.]
of
to
time
the commission of the
charged.
offense
Testimony
Evaluation of
may
You
consider
also
whether the wit-
extraordinary
ness observed
or
insanity,
bizarre
considering the
In
issue
performed by
defendant,
acts
or
you may
has
consider the evidence
whether the witness observed the defend-
men-
been admitted
to the defendant’s
as
to
ant’s conduct
be free of such extra-
tal
the offense
condition before and after
ordinary
evaluating
or bizarre
In
acts.
charged,
de-
as
as the evidence as
well
testimony, you
such
should take
ac-
into
date.
condition
fendant’s mental
count the extent of the witness’s observa-
men-
as to the defendant’s
evidence
tion of the defendant and the nature and
date
tal condition
before
after that
length of
time
the witness’s contact
solely
purpose of
was admitted
for the
with the defendant. You should bear in
assisting you
the defend-
determine
person
mind that
may
an untrained
not
alleged
ant’s condition on the
date
readily
be
able to detect mental disease
offense.
lay
[or
and that the failure
defect]
o.f
psy-
You have heard
evidence of
witness to
observe abnormal acts
psychologists]
testi-
chiatrists
who
[and
may
significant only
be
defendant
expert
expert in
fied as
An
witnesses.
prolonged
witness had
con-
and intimate
give
particular
permitted
field is
his
with
tact
the defendant.
opinion
connection,
In
evidence.
this
opinions
You are not bound
you
you
are
not
instructed that
are
lay
either
or
witnesses. You
labels, definitions,
bound
or
medical
arbitrarily
capriciously
should not
reject
or
what
conclusions as to
is or is
men-
not a
testimony
witness,
psychia-
tal disease [or defect]. What
you
testimony
should consider the
of each
may
psychologists] may
[and
trists
witness in connection
with
other evi-
consider
not
a mental
de-
disease [or
give
weight
dence in
it
the case and
such
purposes,
fect]
clinical
their
where
you
fairly
believe it
entitled to
may
treatment, may
concern is
be
not
receive.
the same as mental
[or defect]
disease
purpose
determining
may
every
for the
criminal
You
also consider that
man
responsibility.
presumed
sane,
is,
Whether the defendant
be
defect],
had a mental disease
[or
must be without mental disease
defect]
[or
by you
explana-
responsible
determined
under the
acts. You should
his
light
given
principle
tion of those terms as
been
consider
of all
you by
give
the Court.
such
evidence
case and
weight
you
fairly
entitled
it is
believe
There
testimony
lay
was also
wit-
to receive.
nesses,
respect
to their observations
appearance, behavior,
defendant’s
guilty by
reason
verdict
Effect
speech,
persons
and actions.
Such
insanity
permitted
testify
as to their own
guilty
observations and other
facts known
If the defendant is
found
may express
them insanity,
based
reason of
it becomes
upon those
duty
observations and facts
to commit him to St.
known
the court
weighing
to them.
Hospital.
There will be
Elizabeths
lay
you
hearing
such
witnesses,
days to
consider the
determine
within
witness,
op-
circumstances
each
to release.
whether defendant
entitled
*38
during century’s study
acquired
of
tion
hearing
has the
the defendant
In that
It
of human behavior.
will
the intricacies
proof. The defendant
of
burden
long
instructive debate
fueled a
custody,
entitled
will
be
in
remain
range
perplex-
only
of
custody
court which uncovered a
if the
vast
to release
ing
previously
questions.
hidden
preponderance
the evidence
finds
helped
move the
injure
decision
likely
himself or And the
is
responsibility from
realm
persons
illness.
due to mental
other
of the
into the forefront
esotérica
requests,
defendant so
If the
Note:
law.
critical issues of the criminal
given.
not be
need
this instruction
never suffered a short-
Durham
While
age
critics, virtually
them missed
all of
concurring
Judge,
BAZELON, Chief
failure which
I consider the crucial
what
dissenting
part:
part
in
emerged
operation.
The critics as-
its
in our
unanimous
decision
We are
generate
ruling would
that our
sumed
today
abandon
formulation
far-reaching changes,
they question-
eighteen
adopted
responsibility
criminal
years
changes they fore-
ed or
condemned
ago
in Durham United
v.
push
fact,
all our
In
for
efforts
saw.
the defense onto
ingful
U.S.App.D.C. 228,
F.2d 862
a new and more mean-
person
is
there that a
We held
actually produced
track, Durham
responsible
act if
a criminal
very
change
The first few
little
at all.
product
of mental disease
act
any
years’ experience dispelled
illusion
place
Durham
mental defect.
jury
of the
would alter
funda-
the decision
juries
now in-
instruction,
will
mentally
operation
the defense.
Law
structed in terms of the American
By
adoption
its
of the American Law
person is not re-
Institute test that a
responsibility,
Institute test of criminal
sponsible
for a criminal act
as a result
repudiates
today
this Court
none
sub-
mental disease or defect he lacks
objectives
Durham,
pages
see
1030-
appreciate
either
stantial
1031, infra,
embraces a
test
new
wrongfulness
his conduct or to con-
hope
it will
where
succeed
requirements
form
to the
conduct
principal question
Durham
failed.
adoption
But
new
law.
test
us, therefore,
adop-
before
whether
though
largely
anticlimax,
an
for even
responsive
tion of the ALI test
language
today's
Durham’s
until
survived
lessons we learned from our
efforts
decision,
significant
be-
differences
implement Durham,
and whether
approach
approach of
tween
resolving
promise
offers
the diffi-
ago.
many years
the ALI test vanished
always
culties that have
troubled us. The
Judge
As described in
scholarly opinion,
Leventhal’s
begin
analysis must
with a clear under-
test
make
ALI
standing
why
Durham
reasons
possible
improvement
adjudica-
an
in the
objectives.
failed to achieve its
tion of the
issue. But on
change
the whole I fear that the
made
Plainly, we did not
fail
want
today
primarily
the Court
one of
trying. Durham reformulated the re-
form rather than of substance.1
sponsibility
hope
test
that new
designed
open
Durham was
to throw
and
presented
useful information would be
more
largely
jury.
of the defense and ventilate
windows
to the
We acted
musty
response
plea
doctrine with all of the inf orma-
of behavioral
far-ranging
experience
1972)
(concurring
opinion) ;
Our
with the re
United
sponsibility
Trantham,
U.S.App.D.C.
defense has led me in recent
v.
States
years
urge
changes
(statement
(1971)
fundamental
rehearing
banc)
support
;
defense. See United States v. Alexander
en
Murdock,
U.S.App.D.C.-,
Eichberg,
&
471 F.
States
(April 21, 1972)
(separate opin
(concurring
2d 923
1017 argued, responsibility would turn moral was elements that determination. disease, solely urged psychiatrists question repeatedly of mental We on have using conclusory question clearly scope of within the avoid labels of psychiatry Testimony psychiatric expertise. Thus Durham either or in law.17 legal power that an act terms conclusion would increase product legal was or questions, rath- was not of mental dis- and moral to decide jury intended, ease its func- how- er than cut it down. invites the abdicate We acquiesce ever, inquiry tion conclusion of productivity into experts. Testimony psy- in- moral terms would define the determination any responsi- chiatric labels fact herent determination obscures the responsibility bility judgment defendant’s does not turn it commit to the given experts. experts jury whether or have rather than that of the expected his condition name and the illness status We a mental disease.18 present, not ex- and the could entirely,
clude
would
causation
issue
engaged
Since Durham we have been
ordinarily go
as a
continuing
process
refining
degree.
explicating the rule of that ease. Carter
“prod-
v. United
term
States defined the
III.
THE
THE NEED TO ABANDON
designed
uct” in
terms
broad
to restrict
TEST
DURHAM-McDONALD
conclusory expert
expand
its
Ever
this court announced
the basic
since
factual
information
available
1954,
jury.19
new test
Later McDonald v. United
struggling
problem
sought
have been
with the
States
to do the same for
distinguishing
uniquely
term
between the
“mental disease or defect”20
psychiatric
discouraging
determina-
psychiatric
elements of
use of
labels
legal
responsibility,
tion of
and the
and which often served to hide the fact
g., Washington
States,
E.
(1968)
v. United
127
(Wright,
J., concurring)
n. 43
29,
;
(1967)
found
response for
closed
everyone
is not
normal
door
a
testimony
is
two witnesses
of these
The
though
fight,
who
hurt in
is
interpretations.
It
open to
least two
may
people. The
it
well
for some
regarded
may
they
appellant’s
be that
criminal
law assumes that
there is
opera-
highly specific in
illness as
its
spectrum “normality,”
that some
appellant’s
that
effect on
tion:
its
people
“normal”
commit crimes while
produce an occasional
behavior was to
others do not.
either
We
allow
cannot
following
explosive reaction
reflex-like
experts
speculate
or the
triggering
instantly on
heels of the
spectrum
about
de-
where
that
later;
rather
an hour or two
event
than
belong
would
fendant
mentally
he were
that the
could have no relation
illness
speculation
ill.
sort
That
type
ap-
in
behavior of
that
resulted
especially pernicious
likely
because it
Putting
pellant’s prosecution.
aside the
against
systematically
to discriminate
conclusory parts
testimony,
their
inner-city
appellant,
slum residents like
testimony
balance of their
so understood since violent unlawful behavior more
support
jury finding
could
of criminal
common in
slums
in
than
middle
neighborhoods.
responsibility.
regard
class
To
behavior
product
as the
of illness in the suburbs
But
it is
clear whether
con-
but “normal” in the slums is to estab-
among
flict
related
lish an odious double standard of morali-
scope
sig-
legal
illness
to its
ty
responsibility.
gov-
nificance.
In other
reject
insanity
ernment
such
witnesses seem to
defense is based on the
premise
tightly compartmentalized
ap-
unjust
a
pellant’s
that
view of
to convict a man
process-
and emotional
behavior he could
mental
not control. There
high
suspect
es.27
is a
There is reason to
incidence of
in
mental illness
inner-city
areas,29
pro-
their conclusion
slum
was based not on a
are
and we
give
judgment
scope
significance
bound to
fessional
about the
same
dealing
the illness but rather on
with
the view that
their
do
residents we
dealing
appel-
people.30
illness was
with
ap~
because
other
irrelevant
If
people
precocious
experiences
27. Dr. Weickhardt
testified
Her
sexual
are
appellant’s
certainly
certainly pathetic
with
illness
do not
but neither
them-
good
conjunction
have as
control over their behavior
selves nor
with the as-
people,
they
symptoms
as other
in some cases
sociated mental
are
in-
angry
become irritable
faster
than
dicative of mental disturbance
suffi-
people,
prevent
understanding
normal
under
stress
cient
her
may
they)
impulsively.
proceedings
assisting
react
Dr. Platkin
in her de-
appellant’s
experiences
testified that
illness involved
fense.
Such
are far
instability,
being
among
emotional
“a low fuse level
uncommon
children
her
tolerance,”
general pattern
and a
socioeconomic situation with the result
getting
fights
reacting
the traumatic
effect
be ex-
involved in
pected
than it
to be far less
would be
way
proportion
out of
to a situation.
by parents
raised
case of
child
page
supra.
28. See
with different habits.
relatives
Hollingshead
Memorandum
Redlich,
29. A.
& F.
Social
assumption
poor people
Class and Mental
Illness
seriously
less
affected
traumatic events
Compare
Betty
Williams,
In re
Jean
provides a
and mental illness
convenient
(D.C.Juv.Ct.,
20, 1959)
27-220-3
No.
Oct.
society’s
provide
rationale
refusal
(denying motion
necessary
for mental
examina
the resources
would be
tion)
honestly
problems.
:
their
deal
substan
UNIFORMITY
pellant’s
controls were
OF
behavior
INTEREST
A. THE
illness,
tially impaired
variety “uni-
garden
is no
here
At issue
responsible on the
should not be held
hav-
formity.”
the benefit
Whatever
ground
*48
for
it is “normal”
that
those
alignment
ing
in substantial
the Circuits
way,31 or
that
to behave
his environment
law,
is
questions of
important
on
examining psychiatrist
the
even because
Court
clearly
the
which
the benefit
not
circum
same
“under
believed that
Circuits
seeking
The other
here.
is
get
even with
stances
I would want
taken
test have
adopted
ALI
have
my jaw.”
somebody
broke
who
ap-
substantially
different
variety
of
interpretation
its lan-
proaches
of
adopts
today
guage.33
Court
this
And
THE
ARTICULATED
IV.
COURT’S
dif-
which
ALI theme
variation
REPLACING
FOR
REASONS
approach
least,
design
from the
fers, in
at
WITH
DURHAM-McDONALD
every
the Court
But
other
court.
ALI -DONALD
uniformity
substance
makes clear that
uniformity
only
goal,
my
is not our
but
view,
criminal
In
ALI test of
speak
vocabulary.
same
If all
us
responsibility,
Mc-
with or without
judicial
reasons,
remedy
prob-
language,
the Court
bar,
Donald side
cannot
enhanced.
will
communication
lems in
administration
of the
defense
light
a result
have come
argument
face
accepting the
at
Even
implement
our
Durham-
efforts
value,
very
little
it contributes
my
I
McDonald
While
assume
argu-
rule.
issue. For
resolution of the
my pessimistic ap-
brethren
not
do
share
purport
demon-
ment does
even
not
praisal
test,
no
make
the new
inherently
test
is
strate
ALI
Pages
change.
justify
real effort
this
any
preferable
to Durham-McDonald
opinion
981-985
are
Court’s
disparage
test.
I do not mean to
other
devoted to the articulation
of two rea-
communication,
judicial
the value of
adopting
(A)
sons for
the ALI
test:
markedly
surely
less
a concern of
is
uniformity
judicial
the “interest
importance
merits
than the substantive
approach
vocabulary,
with room of the test.
majori-
adjustments,”
for variations and
any ease,
In
far
is
from clear that
ty opinion
984-985;
(B)
adoption
will,
fact,
of the new test
depart
‘product’
“need to
from [the]
enhance communication.
The Court as-
formulation
and undue dominance
sumes that
have learned
lessons we
experts,” majority opinion at 981-983.
from Durham-McDonald
“lost
have been
underlying explanation
for the Williams
drug
he lived in an environment where
decision is not
that Miss Williams
failed
common).
addiction was
claim,
present
convincing
of mental
page
supra.
32. See
disorder, but
rather
that her claim was
compelling
many
variety
approaches
no more
than that of
33. The
which hide
children,
carefully
language
other
more
than
numerous
behind ALI’s
de-
possibly help.
court could
“In view of
lineated
the excellent brief
filed
respondent’s personal history
Dempsey,
ap-
it is scarce-
William H.
amicus
ly surprising
pointed by
Court,
she feels
‘tense and
at 980-986. Mr.
unhappy
psychiatric help.’
Dempsey’s
need of
brief
on
focuses
the construc-
But so do a
appellate
vast number of the children
tion of the ALI
test
federal
coming before
Id.
this court.”
It
courts.
would thus be a most useful
inquiry
line of
to determine how the dif-
Compare
Carter,
United States v.
appellate
ferences on the
level are re-
55 n.
transcripts
flected
of cases tried
(concurring opinion
209 n. 14
jurisdictions.
may
in these other
It
well
Bazelon,
J.)
(rejecting
psychiatrist’s
C.
approaches
be that
the variation in
speculation
that,
appellant
had
not suf-
Dempsey’s study
vealed
Mr.
is
might
anxiety,
fered from
nevertheless
tip
iceberg.
drugs,
have become addicted to
because
adopted
explication
ALI test as
Circuits,
to the other
in translation”
jurisdiction.
clarifica-
similarly-
Since
in this
been
lessons
their
language
ambiguous
now
tion of
apparently aris-
problem
to us.
lost
is,
later,
litigation
jargon.” minimize
“blockage due to
es because
undertaking.
important
But
course, an
clear
It
Majority
disprove
before us whether
the critical
prove or
would
me how one
adoption
logic
ALI test
as a matter of
But
that assertion.
significant
likely
adopting
make
inroad
surely
a reason
as-
—-and
problem
entirely
domination.
assertion
test —the
ALI
large
question depends in
fact,
de-
answer to
I were to
unpersuasive.
understanding
blocking
part upon
rea-
paradigm
scheme
vise
require-
*49
why
productivity
arrange
Durham’s
communication,
for
sons
I would
handle
ex-
ment became
convenient
major
behind
differences
hide
courts
pert domination.
language,
differenc-
so that the
uniform
by
the
all
be overlooked
question
es would
Durham did not
invent
the
precisely
That is
most
observers.
Every
astute
causality.
responsibility
test
adopting
achieved
result we have
assumes)
the
(or
demands
some link between
language of
all-things-to-all-people
the
impairment;
and his
the defendant’s act
singular
contrast,
By
ALI test.
the
gave explicit
recogni-
merely
Durham
encouraged
prior
phrasing of our
rule
Thus,
tion
issue.
the critical
to the
commentators,
analysis by courts and
its
question is
whether
be
the act must
approach
compare our
and forced us to
(“mental
impairment
dis-
related
approach
I do
of other
with the
courts.
ease,”
reason,”
whatever),
“defect of
expect
reasonably
our
can
not see how we
directly,
all,
but rather how
if at
adoption
our
ALI test
enhance
jury’s attention should
focused on the
be
other courts.
communication with
question.
precisely
It is still not clear
what
B.
DEPART FROM
THE NEED TO
concept
causality
means in this con
THE
FORMULATION
PRODUCT
text,
intelligible
it is
whether
an
con
cept at all. Yet Durham forced the con
questions initially
raised on this
cept
hiding place
out from its
behind the
appeal pertained
to our decision Wash
murky language
of other
ington
U.S.App.D.
States, 129
v. United
productivity question
tests and made the
29,
barring
(1967),
C.
con
rejection responsibility defense. Durham, Unlike focused which relationship between defendant’s short, means of In most efficient act, (impairment) mental illness and his eliminating productivity problem relationship the ALI focuses on the test (but question) productivity is not the between the mental illness defendant’s exculpatory mental limit definition impairment. and his the words so which are illness conditions those test, impairment “as must exist a re- finding of severe in most cases productivity sult” of mental illness. But productivity readily can be made. It can relationship in the Durham sense—the argued reasonably the intent impairment between and the act —is make the was to draftsmen ALI abolished; concealed two de- sponsibility defense available test; questions implicit in the which are suffering psychoses or fendants appreciate Could the defendant other Under severe disabilities.38 wrongfulness apparently interpretation, particular ac- act ju- cepted other federal at least some committed? he have conformed Could risdictions,39 productivity issue particular requirements act difficulty. great rarely present should long impair- law? So as the defendant’s plainly interpretation not the But that psychosis ment is a or other severe dis- today’s adopted Court one ability roughly consonant with opinion, opinion. I the Court’s As read act, questions the answers to those should McDonald definition the retention of the sufficiently questions obvious that long- illness reaffirms *52 not But will even seem to arise. where that, standing Mr. in the words of view predicated the defense on a less severe brief, Dempsey’s “the defense amicus apparently impairment form of it suffering persons —as not restricted to jurisdiction can still be in gravest this types mental disorders. of —those questions find that the de- that must will assume the burden While the processes’ by up or emotional fendant’s ‘mental now Durham’s has been carried ‘substantially his requirement productivity. explicit affected’ and been many capacity’ deprivation tax had cheated his income ‘substantial eventually thereby years, developed control, meaning a and who know or to system. vagrant paranoid capacity If delusional full-blown reduction of falsify he his return after continued to characteristic and trivial dimensions question illness, the mind.’’ onset of the most severe afflictions of productivity presumably present Wechsler, would Law of Criminal Codification great difficulty. Penal The Model in the United States: Code, 68 Colum.L.Rev. Demp 38. See of William amicus brief H. added). (emphasis sey alia, 18-19, citing, at inter an ex Reporter planatory Demp- H. comment brief of William 39. See amicus Code, sey Penal Professor Model Wechsler: at 19-31. thought “[ that the criterion I]t omitted). (footnotes at Id. * * * if there was a should ask causality operation require- implication of the The pri- the references that implicit il- in the ALI can be marily stage test ment aimed at the second of the considering Brawner productivity how question. lustrated Those references carry tried under the new implicit have been test. an would acquittal assurance that presumably expert would witnesses under the test be no diffi- ALI will less explo- his condition an pervasive characterize cult for a defendant a without disorder, personality manifested disability always sive than it been under inability provocation. an deal with Durham. Brawner committed— act which therefore, question, is how The critical through shooting a closed door in retalia- productivity presented issue will be jaw a to his while tion for a short blow jury. pointed above, to the out As I surely consistent his con- with before—-is gave Durham im- formulation false thus be said could that dition. It pression required question apparent- Brawner least some situations ly medical The ALI scientific answer. or capacity to conform substantial lacked language better, does fare since it could requirements this kind of behavior not to offer invite the witnesses little I doubt that But have law. seemingly answer that flat scientific government seek introduce would ex- impairment did did “cause” or Durham, testimony, pert did as it under promise is some the act. But while there committed not be- Brawner this act language test, I fear of the ALI disorder, personality of his cause that the of that lan- construction Court’s get he even rather because wanted “to guage may prom- dissipate much somebody jaw.” who broke [his] per- provides ise. The that “a ALI test supra. page See raised issue responsible son is for criminal con- line need not be if at duct of such time conduct productivity causality ques- called a a result mental disease defect called, tion. But whatever func- ” * ** capacity lacks substantial tionally productivity identical (Emphasis supplied.) The Court main- question routinely arose under Dur- causality requirement tains ham. result,” suggest- lurks “as a the term undoubtedly recognizes ing klepto- The Court of a that the “mental disease open-ended retention of McDonald’s defi- maniac a ‘result’ does not entail as nition of require mental illness will law lack to conform the inquiry causality large prohibiting Majority opinion into rape.” number cases, opin- does, in marked contrast to the a result” The term “as ions course, federal the other courts that have requirement of causal- contain adopted test,41 opin- the ALI the Court’s stage ity. only But it refers the first great places ion emphasis on the causal- test, requirement the ALI under ity question. Superficially, the Court’s indicating impairment must references are directed at the first caused disease. But stage causality question under the causality link crucial —the relationship ALI test—the between *53 impairment and the act—is between the impairment illness and the than’ rather “as a result.” in reflected the term not relationship impairment the between the “appreciat- concepts of It the inheres in question and act. But the the raised “conforming ing wrongfulness” con- and stage that is' so and the first trivial is Thus, kleptomania an ab- if duct.” causality Court’s references to are so mind, the then of numerous normal condition that is hard to the avoid divining opinions of 41. their burden of Of the other Circuit cited Relieved precise judge relationships, the page supra, only the causal Court at one upon jury acknowledges the ulti- concentrate even the can existence of a properly causality which mate under the ALI test. decisions theirs, fully the Freeman, as to facts. informed See United States v. (2d [Emphasis 1966) added.] Cir. : legal kleptomaniac questions the moral and lie test a purposes of the ALI responsibility capacity of of defense. as a result heart the “lacks substantial regardless he act of the mental disease” Washington recog- opinion in Our 2. allegedly But he committed. requirement productivity nized that the de- charged rape, his expert lead to domination the wit- can because, presumably fail fense would they testify much nesses so because not ap- though capacity he lack even testify issue, about the but because wrongfulness of theft or preciate the conclusory issue terms. about the requirements the his conduct to conform conclusory reason, For we barred that theft, may in prohibiting he law of the testimony urged issue, the on this and appre- substantial fact have from to disclose the factual data rape wrongfulness of the ciate jury could draw reasonable which the requirements the conduct to conform inferences defendant’s condi- about the prohibiting rape. the law Inexplicably, con- tion. the Court now Washington “superseded— cludes that My ALI concern with the source the change today point by on this productivity requirement not intended — majority rule,” opinion at the ultimate splitting hairs. as an exercise the Yet, repeatedly carry as the Court 1003. making By a result” term “as the clear, change the ultimate stage makes unimportant only first standing causality re- rule leaves causality criti- question, also the today’s quirement. net effect of de- repeats pre- stage, second cal the Court therefore, is, require ex- correctly cisely cision identifies the mistake drop “product” perts to in fa- term in Durham: the articulation a catch- “result,” permit of the conclusory vor term expert phrase that facilitates jury again to in eon- once tell the them moral that obscures the clusory terms that the act was not caused legal productivity overtones impairment.42 beTo the defendant’s psychiatrist question. a would Where developed sure, mystique has around formerly act have testified that “product,” elimination term and the disease, can “product” of the not the mys- should that term undercut de- now assert disease tique. I no reason to But see assume “result” entail fendant does not as pro- the term “result” immune to impairment have kind of that could especially development, my identical view question. Under duced the act unexplained determination language, of the Court’s psychia- ALI view again per- conclusory experts should once present attempting to trist conclusory testify in argument terms no-productivity to mitted would causality. through murky issue of waters lead the wrongfulness” “appreciating is, fact, goal primary If our conduct,” “conforming in all likeli- domination achieve reduction lost almost hood the would be overruling gratuitous process, causality requirement outset. If the aspect Washington of one expressed readily an uncom- cannot perhaps States43 is —and good yes-no question, plicated there is a important step not the most backward. — recog- begin juries would chance productivity re- identifies The Court requirement per- subsumes quirement nize that chief villain course, Washington, productivity. made clear unrelated to the issue directly psychiatrists speak applaud “should not I that decision because of ‘product,’ salutary significant in terms of or even ‘result’ the in- effect ” *54 U.S.App.D.C. 29, 41, adjudication ‘cause.’ 390 129 on the struction has had 444, (1967) (emphasis added). responsibility jurisdic- F.2d 456 issue this the page supra. n. 1018 21 tion. See retain, however, 43. The does Court the portion Washington the instruction very jury’s produce substantial distortions the to experts on to encroach mits the process. First, aspect it focuses atten- another the is But there function. entirely susceptible If a tion on an irrelevant issue. at least as test which the Durham, prepared present to evidence Like defendant domination. processes as or emotional that his mental “mental disease” ALI test demands im- non-responsibility. controls fact And behavior were a condition anything why paired, is not today definition it clear that the holds the Court experts’ his view of in Mc- should turn on the announced of “mental disease” applicable ALI test. condition the abstract. to the Donald will be Nevertheless, Brawner’s discussion obliges Second, requirement de suggests partial ero- least a at term showing greater vastly fendant to amake “mental view that of the McDonald sion reponsibility sub to have the issue that, legal concept, is a disease” jury other than to have mitted to jury is nor bound “neither the court many years held issue submitted. We as or conclusions ad hoc definitions “sanity ago ‘essential’ issue is an that de- a disease or state is to what is, which, actually litigated if —that 120, 124, U.S.App.D.C. fect.” tending sup proof ‘some is adduced’ 847, (1962). F.2d port defense —must be submitted guidance jury instruc under today The Court asserts that 88 U.S. tions.” Tatum United “suggestions jected adopt a that rule 612, App.D.C. disentangles insanity defense Conceding any attempt (1951). “that model,” that a suc- a medical and adds quantitative to formulate a measure responsibility be cessful must defense necessary to raise amount of evidence predicated on the existence of an “ascer- produce an no than issue can more by ‘a condition characterized tainable definiteness,” illusory pointed out free does broad that will consensus ” long there some evidence “so Majority opinion I exist.’ at 995. * * * issue relevant to the counsel, experts, fear credibility and of such evidence force requirement trial courts will view jury, must for the be mat and cannot authority delegation sweeping new ter of decision of the court.” law experts. medical U.S.App.D.C. at 190 F.2d point course, does out Of the Court 616, quoting from Kinard v. United pres- that a defendant a broad can make 253-254, App.D.C. 250, F. States, 68 offering jury, entation all of the I 2d 525-526 read As medical, evidence, strictly if not even opinion, can in Court’s a defendant who pertinent an abnormal condi- which is capac troduce “some evidence” presen- tion of the But broad mind. ity in fact to control his behavior was already guaranteed by tra- tation is impaired responsibility cannot take im- ditional real rules evidence. The offer, unless he can also issue pact of the to estab- Court’s decision is issue, put in “con should the prevent lish a barrier some which will suffering vincing evidence” that he taking any defendants from evidence medically-recognized from a condition responsi- all to the issue characterized a broad consensus bility. power open and close that does free will not exist.44 delegated effectively barrier Still, greatest difficulty is not psychiatric experts. requirement onto shifts attention impact speculate imposes can We an extraneous issue or that likely requirement, presenta- it seems an unwarranted obstacle to the * * * Compare impaired. havior Heard v. United [T]he 37, 40, 43, 46 McDonald standard submission : no evidence that “[T]here was not met criminal issue was ” * * * appellant’s (emphasis supplied). to control his Je-
1029 model,” predicate Those “medical re- defense. to a tion of an affirmative sponsibility re- if the defense on such a condition ? could tolerated difficulties be quirement of “broad consensus a explain similarly The Court fails to reflected does not exist” free will experts expected be how medical can important some Court’s effort to achieve impair- provide information about responsibility At defense. purpose of the will, would ment of when free will free ex- point in its does Court no philosophical a seem be a and not legal boundary why con- plain of concept. psychiatrists If will be medical cept —should —criminal required to frame their especially concepts, medical marked concept, terms of this non-medical then validity model” “medical when the M’Nagh- will have resurrected Court seriously questioned eminent some is ten ironic twist. Under with one ex- psychiatrists.45 Nor does Court M’Naghten, effectively medical “convincing evi- plain it means what legal questions, and answered moral and con- a “broad existence of dence” of the cloaked answers in medical terminol- pre- psychiatrists If census.” five ogy. ex- The Court seems to ask now particular condi- pared to assert perts legal moral and determina- make will, impair free how tend to tion does exculpatory about nature of an tions willing many psychiatrists must be condition, them state their and invites testify ef- such an it does not have in non-medical conclusions terms. responsi- preclude a we can fect before however, possible, It is Court’s that the ground bility there defense on the reference to free will is not intended to defend- consensus” that is no “broad carry philosophical implications, moral or impair ? will free ant’s condition tends nothing than a short-hand more many psychiatrists con- must be How component for the ALI test which particular condition vinced that conform refers substantial before defendant nature “medical” permitted, requirements the confines within If will be law.46 conduct Eichberg, Theory Psychoanalysis, U.S. 45. See States v. 39 British 620, 110, 31, Psychology App.D.C. n. 439 E.2d 116 & Medical Journal J., (1971) (Bazelon, (1969) con (paper C. 626 & n. 31 critical evalua- citing curring), tions) ; The Mental Patient: Studies or, Elkes, Spitzer Sociology (S. Fallout: Word J. Deviance Psy Explanation, 1988). in The Hazards N. Denzin ed. & (1970) chopathology of Adolescence 118 Blocker 110 U.S. v. United Cf. Psychopatho (presidential address, (1961) App.D.C. 41, Am. logical Ass’n) Leifer, ; (“no (Burger, J., concurring) R. the Name rule of ; Health, (1969) possibly K. of Mental 196-98 law can or workable sound Unitary Menninger, Concept dependent upon A Toward terms of Psychiatrist’s Illness, discipline in A Mental another members are in whose ; Menninger, profound (1959) disagreement K. World about what those Disease, Changing Concepts mean”) ; Campbell in A terms v. United Psychiatrist’s (1959) ; U.S.App.D.C. 260, M. World 670 Roth, Seeking J., (1962) (Burger, Ground in Con Common dis Proceedings Psychiatry, temporary senting) . Royal Soc’y Medicine 765 (presidential address, circularity (1969) section new of our test becomes Community ; psychiatry) Susser, apparent ALI, M. the three when facets — Psychiatry ; Szasz, (1968) McDonald, 10-20 T. “broad consensus”— Myth together proper sequence. Mental Illness are read Henceforth, criminally person mental illness The medical model of questioned sponsible if, has been ever more exten- as a result mental disease defect, sively by (a) behavioral scientists outside which is an abnormal con- psychiatry. See, g., Albee, substantially e. G. dition of the mind which Psycholo- processes Clinical Uncertain Future affects or emotional gy, Psychologist substantially impairs controls, 25 American behavior Psy- (presidential address, (b) Am. an ascertainable char- condition ; Wolf, Learning chological Ass’n) E. acterized a broad consensus that free *56 so, why omits it the Court V. THE A is unclear ADVANTAGES RULE OF component of the reference to the second THAT THE INSTRUCTS JURY ap- ACQUIT namely, capacity to test: TO THE ALI DEFENDANT wrongfulness preciate Is IF of conduct. HE BE CANNOT JUSTLY premised a determina- that omission HELD RESPONSIBLE cognitive is irrele- tion element jury’s preserve effort func- to mean, responsibility? it vant to Or does experts tion from encroachments cognition perhaps, of element understanding begin must with a clear concept subsumed within the of behavior of mining function In deter- what is. Currens, control? See United States v. jury responsibility issue, a (3d 1961). These Cir. important has two tasks: questions, and others which are no less place ex- In the first it measures the genuinely question extraneous to the tent to defendant’s mental which issue, answered in will have processes and emotional and behavior applying requirement. course of new this impaired controls at the time were course, require the fact Of that the the unlawful act. The answer to that illogical, unwieldy, an ment is invita elusive, but no more so than tion to domination does not neces many other facts that a must find sarily adopted. mean that it should not be beyond doubt a crim- reasonable * * * suggested adop opinion I in a recent inal trial. The second func- explicit tion medical model impairment tion is to evaluate that fending available means of off light community standards concerning questions number of difficult blameworthiness, to determine wheth- handling dangerous our defendant impairment er the defendant’s makes guilty who been found for lack unjust responsible. to hold him responsibility, but who cannot be com jury’s unique making qualification for mitted to a medi medical institution for justifies that determination un- our opinion care. In that I cal same out jury’s usual deference to the resolu- approaches lined several alternative responsibility.47 tion of the issue of advantages attempted point out the Nothing today sug- opinion in the Court’s disadvantages of each. See gests long-standing departure Murdock, U.S. States v. Alexander & view that the these func- second of two App.D.C.-at---, F.2d 923 tions—the evaluation defendant’s (April 21, 1972). 960-965 But o,f impairment light community stand- reasoning Court does disclose very ards of blameworthiness —is the adoption that underlies medical its of the jury’s essence of role. The Court provide model. Nor does it indication points out, example, purpose limitation on the this justice propounded is the sense [i]t legal concept responsibility. The disad charged making those with vantages clinging model a medical declaring legislatures law— acknowledgment are shouldered without lays the rule courts—that down emerge explanation. clear does What persons capacity without substantial ly opinion that we from the Court’s know or control the act shall be concerned, experts a turned over to the have now excused. The part inquiry, understanding applying community substantial without making why expert lay particular clear domination broad rule opposed this context—as the context medical Where the matter facts. unobjectionable. productivity naturally is unclear on its will call —is exist, Eichberg, will does not lacks substantial 47. United States 142 U.S. wrong- appreciate App.D.C. 110, 114-115, either (Bazelon, J.,
fulness of his conduct or to bis conform 624-625 C. concur requirements ring) of law. conduct . meaningful help provide justice it deter- own sense —can [Emphasis questions posed the ALI answer to the added.] mine the matter. some test. And in their search for again, Majority 988. And standard, intelligible semblance of an of criminal *57 doctrine they may forced to whether consider “of that there no doubt is such can be just it the defendant would be to hold complicated nature of the decision the responsible By in- that for his action. intertwining moral, legal, to be made— approach lead direct juries our test new * * * * judgments,” and medical disregard (or depreci- at least [J]ury accorded have been decisions ate) eonclusory testimony the they unusual deference when even “intertwining experts, make and to responsibility in the face have found moral, legal, judgments” on and medical powerful record, medical evi- of a with responsibility which of the resolution uncontradicted, pointing dence exculpation. toward depends. properly The Court’s elements of The “moral” opinion approach, own hints at this exclusive- the decision ly by not defined maintaining that is wisdom in “[t]here religious considerations but jury generally the view under- that totality underlying conceptions of enough stands composed instruction well that an justice ethics and shared the com- of gives it flexible terms suffi- expressed by jury munity, as its sur- disregard- that, cient latitude so without added; rogate. [Emphasis citations ing instruction, provide it can that omitted.] application of instruction which opinion also Majority See at 982.48 justice. harmonizes its sense majority at 990. generally The ALI rule communicates meaning.” Majority opinion that at 988- Against background this it is clear jury’s attention Durham that focused wrong question the relation- may very approach well —on Court’s ship impairment act and between encourage jurors succeed to look than on rather the blameworthiness behind the and recommenda- by pre- the defendant’s action measured experts. But, tions I have vailing community standards. If above, tried to demonstrate there is also improvement, ALI an it significant test indeed possibility our new that not right it attention on the because focuses power test will leave the question, makes because enlarge- possible intact —or make even an wrong question that the jurors may so obscure my opinion, ment of their influence. In to answer abandon the effort jurors that instruction tells the literally. candidly is, is the what their function encourage likely instruction most asking jury whether the Instead jurors to that resist encroachments on impairment, caused our act was might itself, that not be function. asks to wrestle with new test justification adopting sufficient such for unfamiliar, incomprehensible, if not such concepts adoption a test if it were clear its appreciate capacity would a neces- entail substantial costs as wrongfulness action, of one’s and the sary by-product. But I am unaware of conduct to the to conform one’s compel adopt costs us instead requirements hope law. The best test, less ALI so much offers jurors regularly new test will our is that including promise dealing problems conclude no with the one— group quotation judgment of a with a the commonsense 48. The Court continues community’s partici- Florida, laymen, v. U.S. Williams pation 1893, 1906, L.Ed.2d and shared S.Ct. group’s (1970), pointing the essential sults from determination out guilt interposition or innocence.” of a “lies feature accuser the accused and his between simply reflect the defense initially brought our fact that the ease traditionally non-responsibility attention. illness, or in been associated with mental jury should instruction to the Our language day, “in- of an earlier responsi- provide is not that a defendant Washington sanity.” his conduct at the time ble unlawful 37 n. processes or mental or emotional his Moreover, 452 23. n. impaired such behavior controls were justly experience has made it clear that held an extent that he cannot responsible terms we use—“mental disease This test would act. single question: psychiatrist defect” and “abnormal condition ask the o,f carry impairment flavor a distinct what the nature of mind”— pathology. attention and emotional And deflect the defendant's mental *58 processes It from the crucial functional and behavior controls? ability jury question —did the to for the defendant lack would leave meaningful any impairment make action whether that is sufficient choice of misleading responsibility —to an relieve the defendant artificial charged.49 psychi- particular excursion the thicket of for the act into diagnosis atric and nomenclature. proposed purpose instruc- The of this Murdock, jury’s attention on States v. Alexander & tion to focus the is - legal aspects at---, of criminal and moral why 1972), (April 21, F.2d responsibility, and make clear 923 at 960-961 (dissenting opinion). responsibility en- is determination of jury not the trusted adopt I would an instruction based say That, plainly, is not to witnesses. language McDonald, seems east adrift that acquit should be comprehensible to me more than the lan- accord- or the defendant convict guage capacity of the ALI test. The ing caprice. not would be appreciate wrongfulness of conduct responsi- find a defendant instructed to capacity and the to conform conduct to just, him and to if that find ble seems requirements are, fear, of the law I just. On responsible if that seems not concepts meaning with little contrary, in- would the instruction ,for jurors. present pur- or to But very requirements -impair- corporate the — pose, aspect proposed the critical of the processes or emotional ment of mental jury instruction is not the use the Mc- McDonald controls—that behavior terminology Donald or the omission prerequisites of the established as any reference to an “abnormal condition sponsibility defense. of the mind.” If the is convinced Court terminology the addi- ALI proposed instruction has of the test advantage avoiding explicit jury’s inquiry, would illuminate the tional or “abnor- that the terms “mental to “mental disease” disease” or “ab- reference should, As used normal of the mind” the mind.” condition mal condition of prior reason, retained, never for whatever tests, terms were it is these possible still disabilities to draft an instruction intended originate exclude clearly body,50 jury’s role in in diseases of the describes Holloway with estab- 80 U.S. below seemed concerned v. United court 49. Cf. lishing appellant’s epileptoid 3, 4, App.D.C. : disorder “physiological [McNagh application been as over of these tests “The impulse], against however determination ten mental.” and irresistible phrased, cannot turn on the borderline case can to a criminal epi- judgment nothing of a debate about whether more than a moral outcome unjust lepsy physical just blame the is a mental illness or a he did.” for what one. defendant distressing Thus, to find prosecutor and the bar that case at properly deciding incapacity will be taken into account but when the defendant’s malign splash exculpation. with unconfinable and warrant is sufficient to fact, minority Majority opinion consequences.” at 987. the ALI draftsmen Wechsler, (along argument present two Professor seems to That Code) separate justifications pretending reporter Penal Model person inquiry proposed providing that the fact. that a is confined to a test argument apparently responsible First, the reflects for criminal conduct is not “justice” adoption a concern that if the time of such conduct as a approach permit would the introduction result mental or defect his disease appreciate at trial of But either extraneous information. urged minority criminality approach under the or to con- of his conduct Council, requirements form the ALI a defendant must his conduct to impaired substantially proffered still of law is so demonstrate that evidence responsible. impairment capacity. justly he cannot be held relevant to an provide The test him does with a contrast, By majority test, now ALI merely license to introduce evidence Court, provides adopted that a purpose engendering sympathy person jury. Adoption for him in the responsible for criminal conduct “justice” approach would still leave time of such conduct as *59 standing all of the traditional obstacles he result of mental disease or defect the to introduction of irrelevant evidence. ap- capacity lacks either to substantial ground objec- The Court’s second criminality preciate his conduct the apparently is tion that an instruction re- conform conduct to the to justice permit cast jury terms of would the quirements of law. regard acquit to convict or without ap The difference the two between legal out, points The Court standard. proaches type pertain the does not example, that showing Both a must make. defendant * * * thing is one to tolerate [i]t require the to demonstrate defendant jury’s and even welcome the sense ap particular incapacity. a form of .of equity ap- as a force that diverge establishing affects its proaches a stand plication of instructions state incapacity ard to determine when the is legal crystallize the rules the that exculpate sufficient the defendant. quirements justice view, jury determined majority Under the ALI the community. the of the It lawmakers is acquit capacity must if the defendant’s quite jury large, another to the set substantially impaired. The ALI/ e crystallization, evolye without minority such require acquittal would wher legal its own rules and standards of capacity the defendant’s so substanti justice. ally impaired justly he cannot that responsible. held Majority opinion at I take it that ultimately rejected majority ALI in the Court’s view the version minority approach “legal mem- jury because of the ALI test “[s]ome offers crystallize bers of the Council it unwise to requirements deemed rules that present questions justice jury, justice as determined the lawmakers preferring form, community,” minority a submission that of the and that least, inquiry jury confines the fact.” version sets the adrift without such apparently view, crystallized The Court then, this What, shares rules. these rejects “overtly crystallized pointed an instruction cast I out rules? above ” ‘justice’ grounds in terms of on minority while the version asks feasibly jury that such an impairment instruction “cannot to measure the in terms may be restricted justice, majority to the ambit of what of its sense of own 4.01, Proceedings added). 51. Model Penal Code Comment at § ALI 206-20 See (Tent.Draft 4, 1955) (emphasis (May 1955) (unpublished). No. acquittal if in- Our make requires instruction should clear that version jury requires con- substantial, order a capacity convict defendant determine, incapacity must is insubstantial. first basis if the viction expert opinion seriously factual back Can maintain ground experts, preferable majority disclosed ALI instruction im- extent to which defendant’s its determination because processes pairment reflects emotional and behavior be “substantial” must find, impaired, crystallization requirements controls were and then a standards, justice community the com- the basis of moral the lawmakers of degree munity? prefer impairment was suffi Naturally, that the all we would slight law, ciently could, defendant can matter of rule fairly bright responsible for responsible be blamed held draw line between person.52 non-responsible his act like other But defendants. adopted by plainly ALI test this Court is expand inquiry in scope To jury no a rule. It such offers significant way would not invite “intertwining help making real acquittals. It increase the number of moral, legal, judgments” that and medical encourage would, however, greater com- expect. fact, all of us because how mitment effort understand question describes the as one of fact act as each criminal defendant came to lull the into mistaken as- consistently juries were did. Even sumption responsi- so the standard of set bility by experts, can best be resolved virtually every low that defendant would o,f leaving mercy at the the wit- it, they meet would still have to con- persuasively that, ness who asserts most front the causes criminal conduct in judgment, in his the defendant’s way might something us teach all substantially or was not about human And would behavior. impaired. giving careful, defendants the kind of *60 study precede individual that should approach It not is at all that clear the consequential imposi- decision as as the suggested I have the on based —whether tion moral of condemnation on another terminology of the McDonald ALI test or being. human finally —would bar the encroachments on jury’s Nevertheless, ap function. this VI. PRACTICAL proach PROBLEMS OF THE majority the test ALI —unlike adopted DEFENSE AND THE DISPOSI- directly the Court —comes TION OF grips THIS CASE problem expert with the of domina tion in respon a manner is at least distressing In a number cases of recent experience sive to our under Durham. this Court been asked to consider majority merely ALI test reshuffles questions unrelated to the substantive components; and obfuscates the Durham responsibility, have, test of but which nothing jury does to sort out the practical matter, greater as a far im- the difference between function and pact its operation the on of the defense than the expert language function of witnesses. the rule. The Court’s subjected involuntary can be & United States v. Alexander Mur- civil com- Adoption dock, mitment. U.S.App.D.C.-at---, of a instruction minority presum- (April like the ALI at test 960-965 would ably (separate opinion), pointed give 1972), expansion I out rise to such an changes responsi- expand since the test does in the reach of the the cate- gory persons bility important exculpated by rami- of defense could have who can be responsibility merely gives It fications the doctrine civil com- defense. explicit recognition jury’s If we diminish the class mitment. function resolving persons criminally degree. who can be found re- That may produce sponsible, implicit every same wo a concomitant function test expansion responsibility. persons of criminal class who objection defense counsel’s Durham-McDonald After abandon decision nothing prosecutor overruled, question was does of ALI-McDonald in favor again: questions or Court’s asked these to obsolete paramount If our responses to them. your to wheth- conclusion as was What process goal improvement of the an relation- there was causal er or not responsibility is- adjudication ship two matters? between the on sue, should focused our attention replied: The witness ulti- questions than on rather these my was there It was conclusion that Obviously, mate definition of test. relationship men- his no causal between questions be resolved cannot all these alleged offense. tal disorder and the approach opinion. Court’s one But the testi- Transcript sure, this at To be disposition some this case offers “prod- mony phrased in terms was not in which these manner indication of the uct,” hardly but the could avoid future. questions handled will be cutting message causality note in one consistent 1. The edge test experience analysis under Court’s experts con- some of were least objection is the to domination Durham causality did not exist vinced through accomplished Nevertheless, re- this case. the Court attempt- productivity requirement. We despite fuses to the conviction overturn Washing- problem in to deal with ed patent and the this violation of the letter barring conelu- ton v. United States Washington spirit of rule. testimony expert sory, on issue suggested I abandon- above that expert productivity. Virtually all “product” may have ment of term agreed trial witnesses at Brawner’s reducing some beneficial effect suffering con- from abnormal he was causality mystique that surrounds dis- dition of the mind. The issue jurisdiction. question in But I also productivity pute is- ultimate —the noted that Court has made available jury. transcript sue for the And the conclusory a new handle for conclusory, expert riddled with testimo- causality on the issue of —“result”-—and ny imagine on that It hard issue. same on time it has lifted the ban stronger ap- a case which could make conclusory testimony this issue. Washington peal for enforcement of the transcript trial Brawner’s offers rule. glimpse expect what we can hearing After one wit- sponsibility under test. trials the ALI *61 “per- nesses state that Brawner had a unwillingness The Court’s to reverse sonality epilep- disorder connected with ground Brawner’s on conviction this prosecutor sy,” the asked witness: clear trial makes Court and the this longer any weapons you any courts no have Did also con- come to problem conclusory cerning combat the testi- whether or not the crimes in mony resulting causally and the domination case were related experts.53 you diagnosed? mental illness which sponsibility. See United v. States Win con- The Court’s refusal to reverse the 67, 145 F.2d 1236 447 ston, U.S.App.D.C. part viction rests in on the doctrine (1971); admissibility.” Thompson, United be States “curative There 150 U.S.App.D.C. 403, (May 8, party’s F.2d 465 583 cases which a introduction 1972). generally Wigmore, See 1 Evi J. irrelevant otherwise inadmissible testi- (3d 1940, Supp.1964). mony adversary right 15 § dence ed. confers on his inquiry produc Defense into counsel’s to introduce rebuttal further evidence tivity undoubtedly inspired here was be would otherwise inadmissible. knowledge govern discretionary the certain But such rule is can- ground ment would its case on evidence be invoked when it would subvert a not nonproductivity. any expert policy Before .that fundamental substantive like testimony presented, preserve trial Washington, court for the Washington correctly rule, assessing stated the its critical criminal role 1036 Murdock, U.S.App.D.C. & the federal ander 152 1895 courts
2. Since
position
---at---,
if the defendant
taken the
1037
drawings,
U.S.App.
these
Schappel,
ink
? After
144
little
blots
United
v.
States
just
(1971);
all,
of ink.
Roller
are
Is a
F.2d 716
blots
D.C.
445
U.S.App.D.C.
crazy
man
when
them?
119
he sees
son
United
v.
(1964).54
343 F.2d
closing arguments
Transcript of
at 36-37.
seen
efforts
have
almost
identical
grounds
We
on
other
which
There
other
defense
in
cases.
to ridicule
psychiatrists
ex-
testimony
defense
Alexander & Mur-
See United States v.
or
tremely
psychiatrist
A
vulnerable.
dock, 152 U.S.App.D.C.-at---,
de-
psychologist
who testifies
(Baze-
(April 1972),
pressed
F.2d
624
439
ring opinion).
Winship,
In re
contain a substantial amount
See
397
record does
support
358,
1068,
could
the view U.S.
90 S.Ct.
acted a statute
1970 which
Notes
notes thereto. v. Sauer majority opinion (9th Lord Chief Jus 1957), Judge tice Tindal up ruled that should be Cir. practicalities: Barnes summed ability practice instructed in terms of the “[The] has been doing merely ‘wrong’ accused “to know that he was an to state the word and leave adding: wrong,” jury. act that was “If the decision for the While not en- question put tirely condonable, practice were to be the knowl as to such is ex- edge solely exclusively plained large by of the accused measure an awareness land, eventually with reference to the law of the will a exercise might by jury, judgment sanity in tend confound the moral ns to the ducing them to be believe that an actual accused.” knowledge rarely M’Nagh- law of the land was This issue arose under ten, substantiality essential order lead to a conviction.” and its was reduced capacity test, When arose as to whether not removed the control “wrong” legal wrong, anyone means moral or since under a delusion as to God’s split. group, presumably American courts One fol mandate would lack substan- lowing M’Naghten, capacity held the offender sane tial to conform his conduct prohibited by requirements if he knew the act was law. of the law. group, following A second the lead We are not informed of case where Judge People Schmidt, person Cardozo a mental illness left a (1915) capacity appreciate wrongfulness N.Y. 110 N.E. 948-950 but that, g., appreciate criminality. ruled e. the defense was available killing arises, supported to a defendant who knew the If such case ever legally thought morally wrong right evidence, credible the court can then con- disposition meaning- because he was so ordered God. its sider correct more fully, light The issue is discussed and authorities col- of a concrete record. (2) ought The criminal sanction not be to be known (2) come what has section sought psychopaths criminal paragraph” : “caveat as the —con- people stant such recidivists —because (2) “mental disease The terms should be taken off streets indefinite- abnormality do not include defect” merely ly, and not term a set only by repeated criminal manifested years. ground Its third is stated conduct. anti-social or otherwise (426 73): thus provision purpose of this para- It is unclear whether caveat the so-called [the a defense for exclude graph] require personality.” would that a defendant “psychopathic although legally if, be considered sane split There Federal has been manifesting acts overt concerning provision. Some circuits disease or defect were “criminal adopting refer the ALI rule the courts anti-social,” otherwise there arises separate to both subsections but without from his acts reasonable inference of paragraph discussion of caveat —as derangement either because opinions. and Blake As Chandler nature of the acts or because of considering point, those decisions credible medical or other evidence. and Third Circuits conclude Second (in paragraph be retained should approach Our own is influenced Currens), Freeman while the Smith already fact that our rule includes
notes Dr. Platkin’s They used act. unlawful of his time as “a more the act describe records agreed general they labels,8but various legitimate response ato situation less organic pathology brain an he had severely injured ain been he had which fight personality explosive associated and an very Dr. vindictive.” and was damage organic indi- disorder. would, I “I think testified that Platkin seizures, history epileptic cated too, want the same circumstances under test, electroencephalogram an abnormal my somebody get who broke even with psychologi- responses pattern jaw.” persons with cal tests characteristic per- explosive organic impairment. The by psy- sonality AND DEVELOP- indicated THE disorder was II. ORIGINS by psychiatric testing RULE chological DURHAM OF THE MENT interviews observations. RESPONSIBILITY OF CRIMINAL commenda- All four went into Eighteen ago years formu- this Court describing ap- nature of ble detail o,f lated a new test criminal pellant’s on his and its effect disorder In Dur- District Columbia. stated Each turn behavior. “an ham we held v. United States appellant’s manifested disorder was criminally responsible accused is provocation.9 inability deal with product of act was the his unlawful Appellant .feel- to have severe said mental disease or mental defect.”11